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CIHM/ICMH 

Microfiche 

Series. 


CIHIVI/ICIVIH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  MIcroreproductlons  /  Instltut  Canadian  de  microreproductlons  historiques 


Technical  and  Bibliographic  Notes/Notes  tachniquos  at  bibliographiquaa 


T^ 
to 


Tha  Inatituta  haa  attamptad  to  obtain  tha  bast 
original  copy  available  for  filming.  Features  of  this 
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wliich  may  alter  any  of  the  images  in  the 
reproduction,  or  which  may  significantly  change 
the  uaual  method  of  filming,  are  checked  below. 


D 


D 


D 


a 


Coloured  covers/ 
Couverture  de  couleur 


r~~1   Covers  damaged/ 


Couverture  endommagte 


Covers  restored  and/or  laminated/ 
Couverture  restaurte  et/ou  pellicuMe 


I     I   Cover  title  missing/ 


Le  titre  de  couverture  manque 

Coloured  maps/ 

Cartas  giographiquas  en  couleur 

Coloured  inic  (i.e.  other  than  blue  or  black)/ 
Encre  de  couleur  (i.e.  autre  que  bleue  ou  noire) 

Coloured  plates  and/or  illustrations/ 
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Bound  with  other  material/ 
RailA  avac  d'autrea  documents 


[yH    Tight  binding  may  cause  shadowa  or  diatortion 


D 


along  interior  margin/ 

La  re  liure  serrte  peut  causer  de  I'ombre  ou  de  la 

diatortion  le  long  de  la  marge  IntArieure 

Blank  leaves  added  during  restoration  may 
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mala,  lors'4ue  cela  Atait  possible,  ces  pages  n'ont 
paa  M  f !imAes. 

Additional  comments:/ 
Commentaires  supplAmantairas: 


L'Institut  a  microfilm^  le  meilleur  exemplaire 
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modification  dana  la  mtftthoda  normale  de  filmage 
sont  indiqute  ci-dessous. 


D 
D 
D 
D 
D 
0 
D 
D 
D 
D 


Coloured  pagea/ 
Pagea  de  couleur 

Pages  damaged/ 
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Pages  restored  and/or  laminated/ 
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Showthrough/ 
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obscurcies  par  un  feuillet  d'errata.  une  pelure, 
etc.,  ont  ttt  filmtes  A  nouveau  de  fapon  A 
obtenir  la  meilleure  image  poaaibia. 


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This  item  la  filmed  at  the  reduction  ratio  checked  below/ 

Ce  document  eat  film*  au  taux  de  rAduction  indiqu*  ci-deaaous. 

10X  14X  18X  22X 


26X 


30X 


I 


12X 


16X 


2DX 


24X 


2BX 


32X 


The  copy  filmed  here  has  been  reproduced  thanks 
to  the  generosity  of: 

Law  Society  of  Upper  Canada 
Great  Library 


L'exempiaire  film*  f ut  raproduit  grAce  A  la 
gAnArositA  de: 

Law  Society  of  Upper  Canada 
Great  Library 


The  images  appearing  here  are  the  best  quality 
possible  considering  the  condition  and  legibility 
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filming  contract  specifications. 


Original  copies  in  printed  paper  covers  are  filmed 
beginning  with  the  front  cover  and  ending  on 
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sion, or  the  back  cover  when  appropriate.  All 
other  original  copies  are  filmed  beginning  on  the 
first  page  with  a  printed  or  illustrated  impres- 
sion, and  ending  on  the  last  page  with  a  printed 
or  illustrated  impression. 


The  last  recorded  frame  on  each  microfiche 
shall  contain  tl  <^  symbol  ^^>  (meaning  "CON- 
TINUED"), or  the  symbol  V  (meaning  "END"), 
whichever  applies. 

IMaps,  plates,  charts,  etc.,  may  be  filmed  at 
different  reduction  ratios.  Those  too  large  to  be 
entirely  included  in  one  exposure  are  filmed 
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right  and  top  to  bottom,  as  many  frames  as 
required.  The  following  diagrams  illustrate  the 
method: 


Les  images  suivantes  ont  At*  reproduites  avec  le 
plus  grand  soin,  compte  tenu  de  la  condition  at 
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conformitA  avec  les  conditions  du  contrat  de 
filmage. 

Les  exemplaires  originaux  dont  la  couverture  en 
papier  est  ImprimAe  sont  filmAs  en  commen^ant 
par  le  premier  plat  et  en  terminant  soit  par  la 
dernlAre  page  qui  comporte  une  empreinte 
d'impression  ou  d'illustration,  soit  par  le  second 
plat,  selon  le  cas.  Tous  les  autres  exemplaires 
originaux  sont  filmAs  en  commenpant  par  la 
premlAre  page  qui  comporte  une  empreinte 
d'impression  ou  d'illustration  et  en  terminant  par 
la  dernlAre  page  qui  comporte  une  telle 
empreinte. 

Un  des  symboles  suivants  jpparattra  sur  la 
dernlAre  image  de  cheque  microfiche,  seion  le 
cas:  te  symbols  —*-  signifie  "A  SUIVRE",  le 
symboie  V  signifie  "FIN". 

Les  cartes,  planches,  tableaux,  etc.,  peuvent  Atre 
filmAs  A  des  taux  de  rAduction  diffArents. 
Lorsque  le  document  est  trop  grand  pour  Atre 
reproduit  en  un  seul  clichA,  il  est  filmA  A  partir 
de  I'angle  supArieur  gauche,  de  gauche  A  drolte, 
et  de  haut  en  bas,  en  prenant  le  nombre 
d'images  nAcessaire.  Les  diagrammes  auivants 
illustrent  la  mAthode. 


1 

2 

3 

1 

2 

3 

4 

5 

6 

i 


T.io. 


.^-  '^277 


THE  PROPERTY  OF 
IME  LAW  SOCIETY 


AMEBIOAN 


CEIMIN  AL  KEPOETS.  /C 


A  SERIES  DESIGNED  TO  CONTAIN  THE  LATEST 
AND  MOST  IMPORTANT 

CRIMINAL  CASES 

DETKBMINEO  IN 

THE  FEDERAL  AND  STATE  COURTS  IN  THE  UNITED  STATES, 

AS  WEIX  AB 

SELECTED    CASES, 

* 

iMl'nllTAKT  TO  AMERICAN  LaWVEHS, 

FROM  THE  ENGLISH,  IRISH,  SCOTCH  AND  CANADIAN 
LAW  REPORTS, 


II 


NOTES  AND  KEFERENCES. 


BY 

JOHN  GIBBONS,  LL.D., 

or  TUE  ClIlCAQO  Uab. 


VOL.  X. 


TOGETHER  WITH  A  FULL  AND  ACCURATE  INDEX-DIGEST, 
VOLS.  I  TO  X  INCLUSIVE. 


CHICAGO: 

CALLAGHAN  AND  COMPANY, 

Law  Book  Publishers. 

1898. 


DEC  10 194 


si-ei 


Copyright,  181)8, 

BY 
CALLAGHAN  AND  COMPANY. 


THE  CHICAGO  LEGAL  NEWS  COMPANY, 

PBIKTER8  AND  STEREOTYPEBB, 
CUICAQO,  ILU. 


w 


TABLE  OF  CASES  REPORTED. 


PAGK 

Abshire  ats.  State 456 

Allison  V.  Unitt'il  States 432 

Allrick  ats.  State 90 

Atkins  V.  State 419 


B 

Bard  well  ats.  State 

Bell  V.  State 

Bohbst  ats.  Stnt" 

Brain  v.  United    .latos. . , 
Brooks  V.  State 


c 

Callahan  ats.  State 

Carr  v.  State 

Carr  v.  State 

Cody  atK.  State 

Commonwealth  v.  Jlurphy 

Commonwealth  v.  Walsh 

Commonwealth  ats.  W(;atherman 
Crow  V.  State 

D 


Durrant  ats.  People . . , 
Durrant  ats.  People . . , 
Dyer  et  al.  ats.  State . 

F 

Fiske  ats.  State 

French  v.  State 


G 


Gleim  ats.  State 

Gofif  et  al.  ats.  State. 
Gorham  ats.  State . . . 
Griilin  ata.  State 


71 

270 

3 

547 

13.-) 


97 
75 

329 
41 
67 

337 

93 

1 


499 
530 
227 


9 
600 


46 

20 

25 

89(3 


II 

PAGE 

Hall  et  al.  ats.  State 297 

Hasbrouck  ats.  People 445 

Hendershott  ats.  Regina 292 

Hull  ats.  State 427 


Janzon  v.  People 489 

Jordan  v.  State 31 

K 

Kindig  ats.  State 162 


Lightsey  et  al.  ats.  State 38 

Louisiana  ats.  Murray 242 

Lowe  V.  Volp 15.5 

M 

Moore  v.  United  States 283 

Munslow  ats.  Reghia 480 

Muri)hy  ats.  Commonwealth 67 

Murray  v.  Louisiana 242 


Patterson  ats.  Regina 312 

People  V.  Durrant 499 

People  V.  Durrant 536 

r  eople  V.  Hasbrouck 445 

People  ats.  Janzen 489 

People  V,  Raims 341 

Peterson  et  al.  ats.  State 422 

Plant  ats.  State 272 

Q 

Queen  v.  Riley 403 

Queen  v.  Waudby 83 


(iii) 


iv 


AMERICAN 

B 


CRIMINAL  REPOETS. 


PAOK 
.  341 
29? 


Raima  ate.  People  

Regina  V.  Hen.lersbott ^^^ 

Reginav.Munslow. ••      g, 


TAGK 

....     3t 
State  ate.  Jordan ^^^ 

State  v.Kimlig.  •••••• gg 

State  V.  Lightsey  et  a 


Regina  v, 


Pattei-soii. 
■vlock . . 


404 


Regina  v.  Silver 

Regina  v.Tomlinson ^^,^ 

Riley  ats.  Queen '       ^^^ 

Rogers  ate.  State^. ' " " .  251 

R^env.  United  States 


State  V.  Peterson  ei . 
State  V.  Plant 

State  V.  Sawtelle. . .  • 

State  V,  Seott 

State  V.Scott 


S 


273 

140 
»47 

585 
13 

l.^O 


347 


State  ats.  Scott ^g^ 

State  V.  Williams. ^^ 

State  ats.  Yarbrough ^^^ 

State  V.  Zeigler 


Sawtelle  ate.  State '','..  585 

Scottate.  State •••■■    yA 

Scott  ate.  State " "    ^j.^^^ 

Scott  V.  State gjg 

Silverlockate-Regina.^...------ 

Sparfetal.v.Umted  States...    ^^^ 

State  v.Abshire ^ 

State  v.AUnck ^^^ 

State  ate.  Atkms. ^^    \jmteA  States  ats.  Pvosen . 

SUte  V.  Bardwell •  •  ^70 1  united  States  ats.  Sparf  et  al. .  ■ 

Stateate.  Bell .3 

State  V.  Bobbst ^g. 

State  ate.  Brooks ^^ 


Tomlinson  ats.  Regina 

u 

United  states  ats.  Allison.., 
United  States  ats.  Bram.... 
United  States  ats.  MiK)re... 


494 


432 

547 

283 

,  251 

.  168 


155 


State  V.  Callahan 97   Volpate.  Lowe.. 

Stateate.  Carr ^.^g  W 

rtrv^or.'.V.V. ■.■.■■.'. .■.■■.■.■■    41  L,,3h  ats.  Commonwealth. 

Lof„  c.  Dver  et  al ^2.    ^mi^.^s  ats.  State 


837 


St..ev.I^«r..  a... ......■••■       9  ™;— ',.  c„„.„.o™ea,th 

600 


State  V.  Fiske. 


State  ats.  French ^^1 

Statev.Gleim ■ ^A 

State  V.  GofE  et  al ^.   Yarbrough  v.  State. 

Statev.Gorham 

Stat«v.Griffin ^^^^«  Z 

State  V.  Hall  et  al \  ^^^^^^  ^^^  gt^te. 

Statev.  Hull 


93 


57 


463 


TABLE  OF  CASES  CUED. 


PAGK 

Adamsv.Stato.  29  Ohio  St  412  200 
Alcorn  v.  Railroad  Co.,  108  Mo, 


81. 


Ra'iimaVr  Co.,  105  N. 


Alcorn  V.   KaiUoa<i  L/o.,  i^jo  i.-. 

Alfrod  V*.  StatoVsT "  Miss.  2!)G. . . . 

Allen  V.  Armstrong.  16  la.  ;)<»■'. 

V.  Bradford.  37  Am.  Dec. 


PAGE 
Bennett  v.  State,  36  Sw.  (Ala.) 

947 

Berwick  v.  People,  13  R.  I.  211.. 
Betts  V.  State,  93  Ind.  375. ... . . 

Board  of  Commissioners  v.  Mer^ 
3,4,     chant,  103  N.Y.  143  .........     87 

V,7   Bollman,  Ex  parte,   4  Cranch. 


174 


369 

87 
430 


689 


88 
90 


AllenvVsiate."i5  Tex.  App.   320  428 
American  Trust  &  Savnjf^s  Bank 

V.  Gui.lcr  &    Paoschke    Mig. 

Co.,  150  111.  336....... 88 

Amos  V.  state.  83  Ala.  1  • . .  •  •  ••  • 
Anderson  v.  State,  M   Oa.  hio, 

Rose.  Cr.  Ev..." :;„••• 

Annesley  v.  Anglesea,  1.  How. 

StateTr.  1348.........  ••••••  •• 

People,  70  N.  Y 


171 

108 


Armstrong  v.  feopie,  tu  i^.  ^- 

•  JQ  1  '  -^ 

Arn<.ldv;State,9  Tex  App.435  55 
Atkinson  v.  Allen.  12  Vt  (.19.  382 
Attorney  General  v.  Colburn,  b- 

N.  H.70 •••;••  400 

Attorney  General  V.  l'arr,4  Price 

j.).^ *">^ 


17,')     

Bonner  v.  State,  55  Ala.  242. ... .  220 
Boutelle  v.  Fire  Ins.  Co.,  51  Vt. 

4 «<" 

Bow-en  V.  Matheson,    14    Allen 

499 

Boyce  v.  People,  .55  N.  Y.  645. . . 
Bradford  v.  State,  104  Ala.  68. .. 
Bradlaugh  v.  Queen,  3  Q.  B.  D. 

007,034 ,--UV„"""* 

Breemes'  Case,  1  Leach.  220 

Bressler  v.  People,  117  111.  422... 
Bright   V.   Eynon,    1    Burrows 

:»)0,  393,  394 361 

Brister  v.  State,  26  Ala.  107.. ...  226 
Bristow  V.  Seciuevdle,  a  Ex.  Zlo  rf-^ 

lironsonv.  Kinzie.  1  How.  311..  400 
Brooks  V.  State,  105  Ala.  133^. . .  347 

o4ii 


241 

112 
226 

257 
36 
53 


207 

2T0 

496 

83 

82 


346 


B 

Balicock   V.  United    States,  34 

Fed.  Rep.  8T3 

Bain,  KciXf)7c,  121  U.S.  1...... 

Balbov.  People,  HON.  \.  49-5.... 

Bales  V.  State,  0:5  Ala.  30. 

Barker,  E.v  inirte.  87  Ala.  4 »-; 

Barkerv.People,105Ill.  4.52.      492 

Barr  v.  Village  of  Auburn,   89 

Bl.  361 •••• 

Barrett  v.  Long,  3  H.  &  L.  Cas. 

395 • 

Barton  v.  State,  29  Ark.  68. .. . . . 

Basset  V.  United  States,  137  U, 

S   496 ^ 

Beard  v.  State,  71  Md.  275. . . ...  429 

Bedelman  v.   State,   110  N,   Y. 

232 

Beil  V.  State,  44  Ala.  393 


359 
289 


36 
862 


V.  State,  59  Ga.  4.56 

V.  State,  40  Ga.  689 

V.  State,  105  Ala.  117..... 

V.  United  States,  150  U, 

g_  93 

Buckley  v.  State,  62  Miss.  705. . . 
Burnett  v.  State,  65   Am.  Dec 

I^urnettV.' State,  72  Miss.  994  . . 
Bumey  v.  Tarry,  100  Ala.  157. . 
Bushell's  Case,  Vaughn  148,  149  361 

c 

Campbell  v.  People,  16  111.  17. .. 
Cancemi  v.  People.  16  N.  Y.  501  389 
Carbilis'  Case,  1  State  Tr.  (N.  S.) 

10:M 36o 

Carew  v.  Rutherford,  106  MaBS. 

10 241 


140 
200 
341 

173 
437 

96 

346 

64 


(V) 


f; 


vi 


AMERICAN  CRIMINAL  REPORTS. 


H 


Cnrlill  V.  Carbolic  S.  B.  Co.,  Lim 
ited.  aQ.  B.  484....... 

Carlton  v.  Carlton,  40  N 
Carr  v.  State.  104  Ala.  43 
Cartfi-  V.  State,  56  Ga,  46.| 
Chain  V.  Matthew,  Cro.  l!-liz 


87 
111 


PAGE 

408 
14  847 
..  291 

...  8;w 

581  388 
ciramh'oWrP^pieyiOS  111.  409  430 
Clmndier  v.  State,  141  In'l- 100. .    •). 

Charles  V.  State.  30  Fla.  001 loO 

C.  &  A.  R.  R.  Co.  V.  People,  ex 

rc;.fl7Ill.ll • »» 

C,  B.  &  Q.  R.  R.  Co.  V.  Jones, 

149  111.301 ••••••• 

Chiklers  v.  State,  53  Ga.  106. . . . 

Choice  V.  State.  31  Ga.  424 331 

Citvof  Solomon  v.  Hughes,  24 

j^.jg    211  •"'' 

Claasen.  In  J4,'  il4  U.  S.  200. . . .  260 
V.  United   States,  143  U.  S. 

140 286 

Clare  v.  People.  9  Colo.  133 53 

Clark  V.  Clark,  05  N.  C.  (155 23 

V.  Com.,  133 Pa.  St.  81....  216 

V.  State,  105  Ala.  91 283 

V.  State,  57  N.J.  L.  489...  403 
Clavton  V.Utah,  132  U.S.  633.. 
demand  v.  Com.  (Ky.),  138.  W. 

148 

Colien  V.  State,  50  Ala.  113 

Colev.  State,  105  Ala.  76 

Coleman  v.  State,  44  Tex.  109. . . 

Colt  V.  Eves,  12  Conn.  243 

Comer  v.  State,  25  Tex.  Cr.  App. 


455 

217 
66 
283 
103 
400 


Comerford  v.  State,  23  Ohio  St. 

599 

Commissioners  v.  Clark,  94  U.  S. 

278 

Com.  V.  Anthes.  5  Graj',  185. .. . 
V.  Barry,  115  Mass.  146... 

V.  Bailev,  1  Ma.ss.  63 

V.Bennett,  118  Mass.  443. 
v.  Blankinship,  165  Mass. 


40. 
Com. 


897 
Com. 


V.  Bosworth.  165  Mass.  13. 
V.  Bosworth,  23  Pick.  37, 
110, 


687, 
Com. 


433 

461 

214 
194 
338 
367 
290 

431 
13 

115 

Bowman,  96  Ky.  8 417 

Brewer,  164  Mass.  577..  282 
Carroll,  124  Mass.  30...  338 
Clark,  145  Mass.  251. . . .  429 
Connelly,  163  Ma.ss.  539  90 
Dejardin,  136  Mass.  46.  265 
Elliott,  110  Mass.  104.. .  Ill 
Emery,  11  Cush.  406...  353 
Emmons.  98  Mass.  «...  69 
V.  Farren,  9  Allen,  489. ...  69 
V.  Fitzgerald,   164    Mass. 

35 

V.  Fowler,  96  Ky.  166. .. .  340 

V.  Gannett,  1  Allen.  7 429 

V.  Gillespie,  7  S.  &  R.  496.  267 
V.  GoodaJl,  165  Maas.  088.  276 


PAflE 

Com.  V.  Harmon,  4  Pa.  St.  209.  109 

Hill,  4  Allen,  591 itnc. 

Hills,  10  Cush.  530 353 

HitehinKS,  5  Gray,  483.  «8 

Holmes,  17  Mass.  .^.30.,  357 
Holmes,  127  Mass.  424 . . 

16,  110 

V.  HoUKliton,  8  Jlnas.  107.  208 
V.  Ilu^io  et  al.,  104   Mass. 


153, 
Com. 


64. 
Com. 


276. 
Com. 


V.  Hussey,  111  Mass.  433.. 

V.  Jiidd,  3  Mass.  337 

V.  K.'lley,  165  Mass.  175... 
V.  Kimball,  7  Gray,  328... 
V.  Kinnev,  119  Gray,  311. 
V.  Knapil,  10  Pick.  477.... 
V.  Larrul)ee,  99  Mass.  413. . 
V.  Lyons,  143  Mass.  .577. . . 
V.  Mailer,  10  Pick.  120. . . . 
V.  Jliitthews,  89  Kv.  287. . 
V.  McCanee,  164  Miws.  lOiJ 
V.  McManus,   143    Pn.  St. 


V.  Moixan,  107  Mass.  109. 

V.  Nol.le.  105  Mass.  13 

V.  Parker,  105  Mass.  526.. 
V.  Porter.    10    Mete.    203, 

V.  Presley,  14  Gray,  65. ... 
V.  Randall,  119  Mass.  107. 
V.  Knyinond^  97  M.nss.  507. 

Robinson,  1  Gray,  555.. 

Robinstin.  165  Mass.  420, 


847 

287 
230 
317 
429 
838 
51 
111 
445 
271 
280 
258 

200 

489 

13 

291 

194 
09 

140 
69 

174 

445 


103 
Com. 


Rock.  10  Gray,  4 197 

Rooswcll.  143  Mass.  33. .     07 

Root,  96  Ky.  .533 135 

V.  Ryan,  5  Ikla.s.s.  90 3.53 

V.  Siiveiy,  145  Mas.s.  313. .  89 
V.  Sawtell,  11  Cush.  142. . .  2.89 
V.  Scott,  133  Ma.ss.  332,  238  132 
V.  Sharpless,  3  S.  &  R.  91, 

257 
230 
289 
287 
133 
352 
208 
207 
353 
207 
208 
73 
153 


V.  Shedd,  7  Cush.  514. . . . 

V.  Simpson.  9  Met.  138. . 

V.  Smart,  6  Gray,  15 

V.  Snow,  111  Miiss.  411... 

V.  State,  11  Gray,  60 

V.  Stevens,  1  JIass.  203. . . 

V.  Stow,  1  Mass.  .54 

V.  Sullivan,  104  Mass.  5.52, 
Sweney,  10  S.  &  R.  173, 

Tarbox,  1  Cush.  66 

Tenney.  97  Mass.  50. , . , 

Tivon.  8  Gray,  .375 

Van  Sickle.  Brightly,  73  199 
VanTuyl,  1  Mete.  1....  200 
Van  Vincent,  165  Mass. 

340 
337 


18. 
Com.  V.  Webster,  5Cush.  320.'." 
V.  Wentworth,    118  Mass. 

441 

Com.  V.  Williams,  6Gray,  i!.!.* 
V.  Wilson,  1  Gray,  133. .. . 


69 

88 
114 


TABLE  OF  CASES  CITED. 


Vll 


PAOR 
Com.  V.  Wood,  97  Mass.  235. . . .  UiW 
V.  Worcestor,  141  Mivhh.  58  liU 
V.  WorcoMtLT,  H  Pick.  4(12.  .r.H 
V.  VVriKht,  1)U>  Mass.  !W3..  2(15 
V.  WriKht,  107  Mush.  4(W.  .  4:1<I 
V,  WriKht,  158  Mass.  141),.     83 

V.  York,  »Mi'to.  »:5 51 

Copp  V.  ll.-nnikor,  55  N.  II.  171)  !51)1» 
CorpDration  of  Wellington  Co.  v. 

Milou,  10  C.  P.  134 m 

Corwiii  V.   Cowan,  13    Ohio  Si. 

021) »n 

Cox,  E,i' parte,  13  Tox.  Ai>p.  005.  105 

V.  State,  34  S.  W.  754 45 

C.  P.,  oto. ,  Co.  V.  City  of  Cliicasf), 

88  111.  231 1J44 

Crahtrce  v.  State.  30  Ohio  St.  383  3 10 
Ciei'd  V.  FiHhor,  9  Exch.  473....  387 

Cui-lin  V.  State,  4  Yerw.  144 420 

Ciirr  V.  Hiin.Uey,  31  I'ar..  939. . .  174 

Curtis  V.  Uill,  34  Conn.  49 400 

Cuslionberry    v.    Mu'Iurray,   2' 

Kas.  338 144 

D 

Dan  forth  v.  State,  75  Ga.  614. . .  332 
Daniels  v.  State,  0  Am.  St.  Kej). 

243 20 

Davis  V.  School  Dist.,  44  N.  H. 

398 400 

Davy  V.  Baker,  4  Burrows,  2471.  235 

Day  V.  Day,  56  N.  H.  310  352 

Deilkes  v.  State,  141  In.l.  33  ....  479 
Delaplaine  v,  C(X>k.  7  Wis.  .54. . .  88 
Denham  v.   Commissioners,  108 

Mass.  203 86 

Despard's  Case,  28  How.  State 

Tr.  346 376 

De Warren  v.  State,  29  Tox.  464.  463 
Dillin  V.  People,  8  Mich.  309 ....  40 
Dominges  v.  State,  7  Smeiles  & 

M.  475 463 

Donnelly  v.  State,  26  N.  J.  Law 

483 280 

Doolittle  V.  State.  93  Ind.  373. . .  33 
Dossett  V.  Miller,  3  Sneed.  73. . ..  110 

DuBois  V.  State,  50  Ala.  139 83 

Duffy  V.  People,  26  N.  Y.  588. . .  197 
Dunbar  v.  Parks  (1802),   2  Tyler 

217 363 

Durell  V.  Masher,  8  Johns.  445. .  382 
Duvall  V.  State,  163  Ala.  13 82 

£ 

East  Kingston  v.  Towle,  48  N,  H. 

57 400 

Edmond'a  Case,  1  State  Tr.  (N.  S.) 

785 876 

Ellis  V.  People,  153  111.  344 30 

V.  State,  105  Ala.  73 66 

V.  State,  141Ind.  857 56 


PAGE 
Emmons  v.  Pottle,  163  B.  Div. 
354 481 

F 

Farrell  v.  State,  33  Ohio  St.  456.  840 
Fisher  v,  liailway  Co.,  131  Pa. 
St.  293 200 

Fixmer  v.  The  People,    1.53  111. 

123 328 

FoK.irty  v.  State,  80  ( )a.  450 332 

Ford  V.  State,  1 13  Ind.  373 33 

Foster  v.  State.  .53  Jli.ns.  095 140 

Fox  v.  Ohio,  5  How.  410 74 

Fre(!  v.  Buekingiinm,  59  N.  H. 

319,  320 353 

Freedom  v.  Weed.  40  Me  383. . .  30 
Fuller  v.  The  People,  93  111.  183, 

184 200 

G 

Gase  v.  Caraher,  125  111.  447. .. .  88 
(lamel  v.  State,  21  Tex.  App. . . .  43() 

Garrett  v.  State,  99  Ala.  18 00 

Gee  Wo  v.  State,  30  Neb.  241. . .  4.5.- 
(ieorK'ia  v.  Brnilsford,  3  Dall.  1. .  180 
Gibson  v.   Mississippi,  103  U.  S. 

505 246 

Givin  V.   Breedlove,  2  How.  (U. 

S.)  39 161 

Goodwin  v.  Francis,  L.  R.,  5  C. 

P.  395 406 

Goodwin  v.  Hill,  125  Ma.ss.  589. . .     40 

(iore  v.  People,  103  111.  359 327 

Gray  v.  Reg.,  11  Clark  &  F.  437.  387 

Gratz  V.  Com.,  90  Ky.  103 50 

Graves  v.  People,  33  Pac.  03. . . .  53 
Grayson  V.  Com.,  6  Grat.  713. . .  476 
Greeley  Tp.  v.  Board  Com'rs,  etc. 

5GKa8.  510 30 

Green  v.  Biddle,  8  Wheat.  1 . . . .  400 

v.  State,  .53  Ind.  424 437 

Dan,  V.  State,  72  Jliss.  523  397 
Grendon  v.  Bishop  of  London,  2 

Plow.  491 207 

Grimiu  v.  U.  S.,  156  U.  S,  604, .  203 

H 

Haire  v.  Wilson,  9  B.  &  C.  645. .  487 
Hall  V.  Young,  37  N.  H.  134,  143  353 
Ham  V.  State,  4  Tex.  App.  645.  83 
Hamilton  V.  People,  29  Mich.  73.  198 
V.  The  Queen,  9  Q.  B. 

271 827 

Hamilton  v.  State,  33  Ind.  552. .  461 
Hampden's    Case,  13   How.   St. 

Tr.  75 876 

Hand  V.  Ballow,  12  N.  Y.  541 .. .  88 
Harding  V.  People,  10  Colo.  887.  4.54 

Hardv  v.  State,  7  Mo.  007 200 

Harlow  v.  Warren,  88  Kas.  480.  144 


,ME«C.N  CMMmA.  BEPOKm 


pAor. 


-     ,0  1  Knno  v.  Com..  8?  P?;.,riir4W»". '. '.  401 


171 

208 


Hayes    V.     ^"«" »';'   "v    W'uricKsimn,    -   -   •     •  .j 

(Tenn.)  1- 1^/  •  •  ■  '{4  Colo.  228. .  'J-l''       ^^  203.  ••  • .  ■  •  V/;  •  iKenyon), 
Heinssi-n  v.  State, J^        g^^.^.  &  ^  Witliers  (Lord  Mny     '   .^ 


^^''■-  •«•  The  Queen,  L.  Bep.  ^r.  5-1;$,  807. .  •  ■  •  • ' ' '^i '  "is  N. 

Heyinan  v.  The  ^ •••;_•  '^'^M  Kuickerbocker  v.  People,  *        ^^^ 

8'  --•  •  ■  ■„■  The  Queen.  28  L.  T.  ^^77 .^ . .  •  •  •  ■  •  •  •  403 

H^y'""So    I?.^---  ;,ofT  KniKhtv.  State.  '«  J^^^J-J.^o  . . .  U4 

«^v';i^an  V.  The  Queen.  28  L.  T.  ^^^   j^^,^^,^,  ^.  Hauer,  88  Kas. 

ffi«ffs'iWu:s:-i42:-:.|i«  l 

il^'^'^;- UtarUOU.S.574.1.1.  g       .537  .....■.•- -j".- .^,4 4«l 


Hunt  V.  siavu,  ;;^  r.j     413 4.« 

V.  State,   •^W•?*'■*',,^U    S.  ,^  ,,  ^     „.,,,„    „„    ....nn.    

Hurtado  v.  California,  110  U.  »     ^g  Logan  v.  btate.  »  ^  .^^^.^     ^ 


l^,.„ceCav.Braman,lB0.j^3 

a«» 


uii«» .."—  •--                              ....  174 
Lundy  V.  state,  «l  Ala.  100 


iMackinv.  The  Attorney  Gen.. 

-/t•'•J^«:ii:3,w.ico::i9XH. 


295 


Jackson  &  Dean  v.  State,  69  Ala.    ^^  ^^:  r' ilroad  Co. ,  19  :?.  H.  ^^^ 

K.n,  ,.  Co»..l  C.UwM.g.  ^,  K?^,r^a£»™L  485....  155 
61 ' 


TABLE  OF  QVSES  CITED. 


ix 


m 

U4 


ilfll 
4(10 
200 


McO<-lup V.  Stnto.  52  Ala. 204 .... 
McOkv.tu  v.  State.  »  Yt'r«  IM5. . 
Mfliifiiiy  V.  Irwiii,  »(>  Ala.  275. . 
McKaiiiV.    Lore,  a   Hill.  (S.  C.) 

5(1(1 .••••• 

McLaiiKhlin  v.  State.  8  Iml.  281 
McNair  V.  IVopl.-.H»  III.  441.... 
Mecliaii  V.  Valentine,  145  U.  8. 

Oil 213 

Jlercer  v.  SpitrkH.  Noyes  llep.  8.».  Am 
Meiralf  v.  Uilmore.  (13  N.  11.  174  a«2 
Mi<lill<'t.in  V.  Stat.'.  52  (la.  537..  Ill 

Miles.  ///  »r.  52  Vt,  «<)!» 82 

Miller  v.  State,  »  Intl.  i{4() 4ttl 

Mitchell  V.  Overman,  Wi  U.  S. 

02 ^^ 

Mitelieil  V.  State.  »4  Alii.  f)8 «4 

Molir,  In  re.  7;}  Ala.  50:1 300 

Montana  Uj    '.'i>.  v.  VVarn-n,  137 

U.  S.  348 351 

Montelair  v.  Dana,  107  U.  S.  102  213 
Montee  V.  Com.,  8  J.  J.  Marsh 

132 

Montgomery  v.   State,   11  Ohio 

427 

Moore  V.  Illinois,  14  How.  13 

Morearty  v.  State.  4«  Neh.  (152. . 
Morgan,  Ku  iturtc,  20  Fed.  Kep. 

21)H 

Morrill  v.  Warner,  0(1  N.  H 

Morrisey  v.  People  T.  Co.,  32  Atl. 

1» 

Morrison  v.  State,  70  Ind.  335. . . 
Mosi  hell  V.   State,  53  N.    J.   L. 

4!W 

Moses  V.  Julian,  45  N.  H.  53. . . . 
Mulligan  v.  Com.,  84  Ky,  221). . . 
Mullingston,  In  ri\  24  Kas.  214. . 
Muir  V.  Ciuse,  23  How  St.  Tr.  117 
Murdock  v.   Sumner,    23    Pick. 

15(J 

Myers  v.  State,  83  Tex.  525 

N 

Neal  V.  Delaware,  103  U.  S.  370. 

Nels  V.  StaU',  3  Te.\.  280 

Niehols  v.  State,  46  Neb.  715 .... 
Nieholaonv.  Com.,««Pa.  St.  50.5. 
Noyea,  In  re,  17  Ala.  (L.  J.)  407. 

o 


197 

1»1 

74 
418 


.309 
352 


489 
429 


393 
353 


149 
370 

301 
200 


240 

20(» 

74 

199 

83 


O'Brien  v.  Com.,  89  Kv.  3.54  ....  317 
V.  State,  6  Tex.  App.  665  135 
O'Coigley's  Ca«e,  26  How.  St.  Tr. 

1323 361 

O'Connor  v.  State,  46  Neb.  157. .  455 

Odill  V.  Tyrrell,  1  Bulst.  30 370 

Olds  V.  Com.,  3  A.  K.  Marsh  405  463 
O'Neil  V.  Com.,  165  Mass.  446. . .     45 

Owen  V.  State,  78  Ala.  425 230 

Owens  V.  State,  59  Miss.  547  ... .  277 


PAOR 

Page  V.  State.  141  Ind.  230 480 

I'ahj,  f>  /»((•/('.  5  B.  <fc  C.  251 . . .  234 
Parks  V.  Boston.  15  Pick.  198....  301 
Parky na  I'a^e,  13  How.  St.  Tr. 

75 876 

Parininter  v.  C(>u|)eland,  0  M.  & 

VV.  104 210 

Pattei-Hon  v.  Boston,  20  Pick.  159  !«11 

V.  State,  man.  70 ;;,! 

Pearee  v.  Texas.  155  U.  S.  311. . .  311 

Pedley'a  Case,  1  Leach.  335 30 

People  V.  Adams,  3  Denio,  190.  .  300 
V.  Aldrich,  104  Mich.  I."'.').  340 
V.  Allen.  5  Denio.  19)  ..  300 
V.  Altman.  147  N.  Y.  473.  418 
V.  Ai\(h'rson,  44  Cal.  05..  19S 
V.  Barrv,  90  t;al.  41.  .200.  210 
V.  Beach,  83  N.  Y.  508...  173 
V.  Benedict.  Ill  Cal.  374.  418 
V.  Bodine.  7  Hill,  147....  389 
V.  Bo^'itrt,  30  ( 'a I.  345. . . .  289 
V.  Hrodinc.  1  Denio.  281  .  as9 
V.  Brown,  59  Cal.  345....  403 
V.  Bu<liland,13 Wend.  593  51 
V.  Budden.-sick,  103  N.  Y. 

487 391 

People  V.  Cameron.  139  N.  \'.  33  87 
V.  Casey.  90  N.  Y.  115..  .  31)0 
V.  Coiruuin.  24  Cal.  231..  337 

V.  Cox.  40  Cal.  375 2H9 

V.  Cross,  135  N.  Y.  530. . .  83 
V.  Crosswell,  3  Johns.  337  187 
V.  Demonsct,  12  Pac.  788.       0 

V.  Dod-e,  28  Cal.  445 403 

V.  Dovell,  48  (^al.  85 110 

V.  Duncan,  104  Mich.  4(iO.  493 
V.  Elliott.  5  N.  Y.  204....  113 
V.  Eubanks,  80  Cal.  395..  337 
V.  Fairchild.  48  Mich.  31.  30 
V.  Faut,  22  Wall.  110....  313 
V.  Finnegan,  1  Parker  Cr. 

Rep,  147 198 

People  V.  Fisher,  14  Wend.  9. . . .  230 
V.  Fonda.  63  Mich.  401...  73 
Ex  rd.  Cilbert  v.  Pease, 

Chi.  L.  J.,  189.-),  343 97 

People  V.  (iirardin,  1  Mich.  90. . .  258 
V.  Hawley,  111  Cal,  78... 

138,  298 

V.  Hoin.  62Cal.  120 337 

V.  Howard,  17  Cal.  64....  35 
V.  James,  110  Cal.  155...  328 
V.  Kamaunn,  110  Cal.  155  337 
V.  K(>()naghan,  73  Cal.  009  337 


People 


V.  Madden,  76  Cal.  521 , 


V.  Mather,  4  Wend.  9 


200 


241,  389 


People  V.  McDonell,  47  Cal.  134  .  337 
V.  McNulty,  93  Cal.  427. .  336 
V.  McNutt,  93  Cal.  658. . .  216 


246. 


V.  Messersniith,    61    Cal. 


837 


X 


AMERICAN  CRIMIXAL  REPORTS. 


V. 
V. 
V. 
V. 
V. 
V. 


PAGE 

,  113 
.  3;}  7 
.  200 
.  113 
.  340 
.    4H 


People  V.  Moore.  45  (^al.  19 

V.  Meyers.  20 Ual.  518... 
Newman.  8.")  Mich.  08, 

riiitii,  ICON,  y.swi. 

K()l)v.  53Mich.  577... 
Kozelle.  78Cal.  84.... 
Saunders,  29  Midi.  269  430 
..ScoKKins,  37Cal.C76..  443 
v.She?nian,10W..n(1.29S289 
V.  SinipHon,  48  Midi.  474.  280 
V.Stanley,  47  Cal.  113...  112 
V.  Tlioinas,  llOCal.  *.l...  154 
V.  Tornlinson,  66  Cai.  344  28< 
V.  Tiearhvell.  69Cal.  226.  290 
V.  Travers.  88  Cal  233. . .  337 
V.  Un  Dong,  39  Pac.  12. .    55 
V.  Vane,  12  Wend.  78. . . .  115 
V.  Verinilyea,  7  Com.  108 

367,  389 
V.  Ward,  110 Cal.  369....  336 
V.  Warner.  104  Midi.  337.  227 
V.  Webster,  111  Cal.  381.  70 
V.  White,  34  Cal.  183..  ..    74 

V.  Wilson,  49  Cal.  13 337 

V.  Wilson,  109  N.  Y.  345.  391 
V.  Wrif;ht,  93  Cal.  564  . . .  200 
Perkins  v.  Scott,  57  N.  H.  55. . . .  399 
Peterson  v.  West.  U.  Tel.  Co.,  1 

Chi.  L.  J.  Wky.  375 488 

Pierce  v.  State,  13  N.  H.  536. . . . 

197,  308,  399 
Pierson  v.  State,  99  Ala.  148. .. .  80 
Plunkefs  Case,  8  How.  St.  Tr. 

447 365 

Posnett  V.  Jlarble,  63  N.  H.  481.  274 
Pringle  v.  Huse,  1  Crow.  433. ...  389 


PAOE 


Ra wl  V.  State,  70  Miss.  730 73 


Q 

Queen  v.  Bradlaugh,  8.  Q.  B.  Div. 

569,573 257 

Queen  v  Buttle,  L.  R.  1,  C.  C.  R. 

248   293 

Queen  v.  Geering,  18  L.  J.  N.  S. 

M.  C.  215 295 

Queen  Ins,  Co.  et  al.  v.  State  ex 

rel.  Attorney  General,  86  Tex. 

250 240 

Queen  v.  Reeves,  L.  R.  1  Cr.  Cas. 

362 173 

Quinn's  Case,  32  How.  St.  Tr. 

954 305 

Quinn  v.  Com,  20  Grat.  143. . . .  95 
V.  State,  35  Ind.  485 11 


Heed  v.  State,  141  Ind.  116 S29 

HeL'icide's  Case,  5  Haw.  St.  Tr. 

975 im 

Rcjifiol,  E.V  iMirtc,  114  U.  S.  643.  299 
Kegina  v.  Asiiinall,  3  Q.  B.  Div. 

48 337 

Regina  v.  Aspinall.  30  L.  T.  Reji. 

297 483 

Regina  v.  Baldry.  2  DeiinisouCr. 

('as.  43 171 

Regina  v.  Blakeman,  3  Car.  & 

K.  79 388 

Regina  v.  Boale,  31  Q.  B.  D.  284.  483 
V.  Bradlaugh.  3  Q.  B.  D. 

621 2G.> 

Regina  v.  Connolly.  35  O.  R.  151.  293 
V.  Cooper,  33  L.  T.  Rep. 

754 324 

Regina  v.  Cooper,   13   Cox  Cr. 

(V.  187 330 

Regina  v.  Dolhv,  1  Car  &  K.  238.  359 
V.  Do.ssett,  3  C.  &  K.  30(1.  395 
v.  Farler,  M.  S.  S.  C.  G., 

8C.  &P.  100 105 

Regina  v.  Gray.  4  F.  &  F.  1103. .  205 
V.  Harvev,  1  C.  C.  R,  284.  481 
V.  Harvev.  1  Cox.  540. . .  331 
V.  Herford,  3  E.  E.  115. .  294 
v.  Hughes,  2  Crow  &  B. 

390 379 

Regina  v.  Miller,  14  Cox,  365. . .  24 
V.  Morton,  L.  P.  I.  C.  C. 

23 408 

Regina  v,   Oddy,  2  Den.  C.  C. 

264 298 

Regina  v.  Parish,  8  Car.  &  P.  94.  210 
Regina  v.  Prince,  L.  R.  2  Crown 

Cas.  154,  175 70 

Regina  v.  Ritson,  L.  P.  I.  C.  C. 

~^00 400 

Regina  v.  Rowlands,  5  Cox  Crini. 

Ca.s.  430,  400 241 

Regina  v.  Rowton,   10  Cox  Cr. 

Cas..  25 4ov^ 

Regina  v.  Ryan.  2  Mo.  C.  C.  i.'il. .  48i 
V.  Sargent.  39  J.  P.  700.  321 
v.  Sowerby,  17  Cox  C.  C. 

JV 320 

Regina  v.  Trolson,  23  Q.  B.  Div. 

168 

Regina  v.  Truman,  8  Car.  &.  P. 


R 

Race  V.  Com.,  11  Ky.  L.  Rep. 

407 ^_ 

Railroad  Co.  v.  Hutchinson,  40 

Kan.  51 

Randall  v.  Railroad  Co.,  109  IF. 

S 


09 
80 


Regina  v.  Wilbain«&  Rvaii,  9  Cox 

C.  C.448 *.... 

Regina  v.  Winslow,  8  Cox.  397! '. 

.«n      «r  .7.-  Woodrow,  15  Mees.  &, 
402      W.  404 

Reading's  Case,  7  How".  State  Tr'. 
200      259,207 301 

Reed  V.  State,  141  Ind.  116. . . .  " '  479 
213  J  Rex  V.  Blakewell,  Russ.  &  Ry.  35  289 


323 
290 

340 


TABLE  OF  CASES  CITED. 


xi 


PAOE 

Rex  V.  Court.  7  Car.  &  P.  48G. . .  172 

V.  Cox,  1  Lwidi.  C.  C.  71...  482 
V.  Dt-anof  St.  Asaph,  3  Term 

R.  428 102 

Rex  V.  Edwards,  4  Barn.  &  Ad. 

471 307 

Rex  V.  FuriU'iUix,  Russ.  &  Ry.  33.5  281) 
V.  Hodgson,  3  (Jar.  &  P.  422  2r>.') 

V.  Holland,  15  Term  R.  (507.  234 
V.  Middlehui-st,    1    Burrows 

400 234 

Rex  V.  Morloy,  1  Younj,'e  &  J.  221  234 

V.  Prince,  15  Term  R.  007. .  234 

V.  Rosser,  7  Car.  &  P.  648. .  301 

V.  Snowley.  4  Car.  &  P.  390  289 

V.  Spra^'K  et  ul..  2  Burr.  997  233 

V.  Standard,  7  Car.  &  P.  073  20 

V.  Stofker,  5  xMod.   137 235 

V.  Stoeker,  1  Salk.   371 234 

V.  Stouj^liton,  2  Strange.  900  234 

V.  Tliorlev,  1  MoodC.  C.  343  289 
V.  Turner,  1  Moo.  C.  C.  239  482 

Rhea  v.  State.  110  Ahi.  119 HO 

Rich  V.  Flanders,  37  N.  H.  375. .  399 

Rimes  v.  State,  30  Fhi.  091 155 

Rohhv.  Ilaeklev,  23  Wend.  50..  110 

Robbins  V.  State,  8  Ohio  .St.  131.  200 
V.  State,  60  Ua.  517,  84 

Ga 200,  217 

Roberts  v.  Reilly,  116  U.   S.   80, 

307,  311 

V.  State,  3Cia.  310 331 

V.  State,  68  Ala.  1.56....  443 

Ro2:ors  V.  People,  9  Colo.  4.50 34.5 

Rcjilias  V.  Ames,  2  N.  H.  349.  351, 

353,  381 
Roman's  Case,  22  How.  St.  Tr. 

1033 370 

Ross  V.  State,  74  Ala.  532. ......  112 

liowli'v  V.  London  &  North  West- 
ern iJailway  Co.,  L.  Rep.  8  Ex. 

221 323 

s 

Sanborn  v.  Fellows.  22  N.  H.  473,  3.52 
.SehatlVr  V  State,  01  Ark.  241...  139 
Schmidt  V.  Insurance  Co.,  1  Cray, 

529 361 

Seliodeld  V,  Rivilway  Co.,  114  U. 

S.  015 213 

Sheldon,  Ex  parte,  34  Ohio  St. 

319 311 

Shuk  V.  Board,  106  Ind.  573. . . .     30 

Smith  V.  Com.,  90  Ky.  85 341 

V.  Eanuvs,30Am.  Uec.515,  389 
Ex  parte,  3  McLean,  121 

300,  309 

V.  People,  103  111.82 140 

V.  State,  143  Ind.  085 47!> 

V.  Stat»%  55  Ala.  1 83 

V,  State,  5  Humph.  104. . .  420 


PAGE 

Smitli  V.  United  States,  151  U.  S. 

50 213 

Snyder  ..  People,  20  Mich,  105. .     37 
Spauiding'a  Case,  1  East's  P.  C. 

1025 86 

Sparf  &  Hansen  v.  United  States, 

150  U.  S.  51 26:j 

Speart's  Case,  2  Rolle,  Abr.  81.. .  234 

Spicer  v.  State,   105  Ala.  123 45 

Spii;r's  Case,  1  Dev.  491 303,  305 

Spies  V.  Illinois,  123  U.  S.  131...  3.53 

Spivey  V.  State,  58  Mi84.  858 277 

Stafford  v.  People,  1   Pai'ker  Cr. 

R.474 198 

State  V.  Abbott,  8  W.  V.  766....  475 

V.  Allen.  46  Conn.  531 393 

V.  Ballard,  97  N.  C  .443. . .  23 
V.  Banks,  40  La.  Ann.  736 

113,  133 
V.  Barringer,  110  N.  E.  -525  347 
V.  Bayonne,  23  La.  Ann.  78 

104,  113 
V.  Beavers,  103  Ala.  36. . . .  63 
V.  Benjamin,  49  Vt.  101..  13 
V.  Berkley,  10  W.  Ret).  67  403 
V.  Bertrand,  73  Miss.  516. .  346 
V.  Blackburn,  61  Arks.  407    93 

V.  Blair,  08  Bl.  241 110 

V.  Boardman,  64  Me.  523. .  429 
V.  Bolds.  37  La.  Ann.  312. .  459 
V.  Boston  &   Maine   R.  R. 

"To.,  58  N.  H.  410 3.53 

State  V.  Bousiiton,  5  S.  Dak.  401  340 
V.  Boyd,   38  La.  Ann.   374 

107,  114 
V.  Braxton  et    al.,  47  La. 

Ann.  1.58 57 

State  V.  Brill,  .58  Minn.  1.53 426 

V.  Brite.  173  N.  C.  20 221 

V.  Brobbst,  131  .\lo.  328...       9 

V.  lirown,  27  Vt.  019 259 

V.  Bruce,  5  Or.  08 11 

V.  Buck.  120  JIo.  479 87 

V.  Bmpee,  9  Am.  Co.  R. . .  220 
V.  Buri)ee,  05  Vt.  1.  34. ...  200 
V.  Caldwell  et  al. ,  79  Iowa, 

432 85 

State  V.  Cain,  20  W.  V.  680 474 

V.  Carrick,  lONev.  120....  290 
V.  Casford,  70  Iowa  333. ...  217 
V.  Cfiusev.  43  La.  Ann.  897  460 
V.  Chambers,  87  Mo.  406..  282 

V.  Chit)yk,  92  Mo.  395 113 

V.  Clark,  43  Vt.  629 391 

V.  C.mway,  56  Kas.  683...  140 

V.  Cook,  38  Vt.  437 13 

V.  C'K)k,   20  La.   Ann.  145 

104,  113 
V.  Corbett,  12  R.  L  289....  463 
V.  Coswell,  3  Humph.  409  420 
V.  Covington,  117  N.  C.  834  227 
V.  Cram,  07  Vt.  050 296 


Xll 


AMERICAN  CRIMlisAL  REPORTS. 


V. 
V. 
V. 
V. 
V. 
V. 


200 

402 

13 

21 

428 

200 

189 

217 

8 

30 

3.-)3 


PAGE 

Statev.Creston.3SMo  373„.-..428 
V,  Crook,  115  ^.  C.760...     97 
V.  Croteau,  23  Vt.  14...;- •  !»{ 
V.  Crowlev,33La  Ann.  .82  104 
v.CutshaiUlON.C.SaS..  302 
V.  Daley.  4iVt.  504.......     U 

V.  Davidson,  50  Kas.  54. ..  317 
V.  Dawson,  6  W.  Rep.  401  4h2 
V.  DeLadson,  60  Conn.  7 . .  279 
V.  Donelson,  45  La.  Ann. 

ir-'g  loU 

State  v!  Drawdy,'l4  Rich.  Law, 

87 • 

Statev.  Dyke,  96Mo.2!l8      .... 

V.  Kdmonson.  131  Mo.  .(48. 

Efler,  85  N.  C.  585 

Ehrood,  17  R.  I.  703. . . . 
Elwood,  73  N.  C.  189. . . 
Elwood.  18R.  L234.... 

Estep,  44  Kan.  575 

Fischer,  124  Mo.  400. . . . 
v.Fish,  27N.  J.  L.  324.... 
V.  Flanders,  38  N.  H.  321.. 
V.  Fleshman,  40  W.  V.  726.  418 

V.  Footyou,  24  Or.  61 282 

V.  Ford,  37  La.  Ann.  443. .  200 
V.  Fox,  25  N.  J.  L.  566. . . .  304 

V.  Gee,  28  Or.  100 417 

V.  George,  8  Ired.  (N.  C.) 

824 110 

State  V.  Gibson,  111  Mo.  93  ... .      7 

V.  Gilbert,  13  Vt.  647 235 

V.  Godfrey,  Brayt,  170. ...  389 
V.  Gray,  55  Kas.  135. .  .242,  282 

V.  Griffin,  43  Tex.  538 205 

V.  Haley,  52  Vt.  476 233 

V.Hall,  114N.  C.  909 304 

V.  Hollenbeck,  67  Vt.  34  . .  494 
V,  Hamilton,  35  La.  Ann. 

1043 105.  113 

State  V.  Hand,  7  Iowa,  411 429 

V.  Harley,  54  Me.  562 88 

V.  Harrell,  107  N.  C.  944  . .  22 
V.  Harvev,  131  Mo.  339. . . .  31 
V.  Haacail.  6  N.  H.  3.52, 360,  353 
V.  Hatfield,  72  Jlo.  518. . . .  4(il 

V.  Hawley,  11  Cal.  78 290 

V.  Hendricks,  32  Kas.  559.  132 
y.  Hice  et  al.,  117  N.  C. 

782 20 

State  V.  HiRgins,  53  Vt.  191 12 

V.  Hoja,  66  Conn.  259 347 

V.  Holmes,  40  La.  Ann.  170.  130 
V.  Hcpkins,  56  Vt.  250 ....  340 
V.  Houseworth  etal.,  91  la. 

740 

State  V.  Howard,  16  Wall.  564  . . 
V.  Howard,  17  N.  H.  189. . 
V.Howard,  17N.H.  171.. 

372,  379 

V.  Hoyt,  47  Conn.  518 392 

V.  Jackson,  93  Mo.  623....      8 


PAGE 

State  V.  Jackson.  39  Conn.  230. .     11 

V.  Jarvis,  18  Or.  360 16 

V,  Jean<k'll,  5  Har.  475. ...  200 
V.  Johnson,  30  La.  Ann.  1, 
904 200 

State  V.  Johnson,  115  Mo.  480. . .  7 
V.  Johnson,  16  Nev.  36. . . .  437 
-'.Johnson.  00  N.C.  151..     20 

v.  J^nes.  20  Grat.  704 477 

V.  Jones.  »;;  "*>  H.  369. ...  385 

V.  Jones,  33  Vt.  443 l2 

V.  Jones,  64  Mo,  391 200 

V.  Keach,  40  Vt.  113 11 

V.  Keitli,  3  Les.  Rep.  228. .  431 
V.  Kellev.  66  N.  H.  577...  154 
V.  Kendall,  56  Kas.  238.  .45,  70 

v.  Kins.  9  Mont.  445 48 

V.  Kni-ht.  Tavi.  Hep.  65. .  ,302 
v.  Kiintz.  47  La.  Ann.  100.  100 
V.  Laconibe,   13  La.  Ann. 


195, 


State  V.  Lane.  64  Mo.  319 

V.  Lanier,  DON.  C.  714... 
V.  La  Pa«e.  57  N.  H.  215. 
V.  Larkiiis,  44  S.  C.  302.., 
V.  Laxton.  76  N.  C.  210. . 


126 
216 
463 
428 
403 
20 


V.  Leo,  SO  Iowa,  75. . .  .273,  275 

V.  Lewis,  .56  Kas.  374 30 

V.  Lincoln.  49  N.  H.  4(14. . .  3.53 

V.  Lith'!l.  12  South.  7.")0...  48 

V.  Loe.  98  JIo.  009 403 

V.  I^ml.  118  .Mo.  480 6 

V.  Lvndi.  SS  Me.  385 .56 

V.  Lvon.  39  Iowa.  379 429 


37 

31 

43 

100 

489 

113 


296 

40 

373 


V.  LvoMH.  12  Colin.  4H(i 

V.  Lvtle.  117  N.  C.  7!l!).... 
V.  Mahan.  68  Iowa.  304... 
V.  Mahnfr,43La.  Ann.4nO. 
V.  Ma.s^>n,  3S  Pac.  (Ore.)  i;iS. 
V.  Mason,  38  La.  Ann.  470 
104, 
V.  Maury,  .54  Conn.  178-101  133 

V.  May,  4  Dev.  320 40 

V.  Meade.  .50  Kits.  690 318 

V.  McClov,  8  Rob.  545 136 

V.  McDowell,  Dud.   (S.  C.) 
346 430 

State  V.  McKinney.  Ill  N.  C.  083.  317 
V.  McLain,  "104  N.  C.  894. .  200 

V.  Meaker.  54  Vt.  112 391 

V.  Meyer,  58  Vt.  457 393 

V.  Miller,  60  Vt.  90 12 

V.  Miller,  07  Mo.  0(»4 462 

V.  Montgomery.  8  K.-is.  351.  149 
V.  Mooney,  10  Iowa,  500. . .  461 
V.Moore,  3  Dutch.  (N.  J.) 
105 11 

Statt!  V.  Mosley,  31  Kas.  355 

V.   Moultrie,  33  Lu.   Aim, 
1146 

State  V,  Munch,  22  Minn.  67 

V,  Murray,  63  N,  C,  31.,,. 


51 

458 
290 


TABLE  OF  CASES  CITED. 


XIU 


PAGE 

state  V.  Musick,  101  Mo.  200. ...  217 
V.  Neitler,  13  W.  Kep.  123.  4C3 
V.  Nelson,  131  Wash.  323. .  139 

V.  Nixon,  18  Vt.70 273 

V.  Norton,  82  N.C.  628,...     22 
V.  Niieslein,  25  Mo.  111. . . .      8 

V.  Nulty,  57  Vt.  543 237 

V.  O'Brien,  18  R.  1.473....  402 

V.  Odell,  8  Or.  30 17 

V.  Palmer,  40  Kas.  474 149 

V.  Parker,  1   D.   Chipnian 
(Vt,).  298 208 

State  V.  Patterson,  2  Irert.  340. . .  21 
V.  Patterson,  73  Mo.  695. . .     26 

V.  Paul,  5  R.  I.  185 402 

V,  Pennington,  5  Lea,  500.  205 
V.  Perkins,  117  N.  C.  698..     S3 

V.  Pliair,  48Vt.  300 391 

V.  Pike,  49  N.  H.  399 385 

V.  Potter.  16  Kns.  80 105 

V.  Potter,  18  Conn.  106. .. .  392 
V.  Prudhomme,25  La.  Ann. 
532 104 

State  V.  Rand,  33  N.  H.  210.. 353,  385 

V.  Rhea,  25  Kas.  570 144 

V.  Riddle,  20  Kas.  711 160 

V.  RiKford.  117  N,  C.  718. .  102 

V.  Ring,  29  Minn.  78 290 

V.  Round,  82  Mo.  079 7 

V.  Russell,  33  La.  Ann.  130  113 

V.Sam,  8  Jones,  150 21 

V.  Saunders,  00  N.  H.  39. .  399 

V.  Sears,  28  Or.  202 291 

V.  Sheard.  117  N.  C.  716...  276 
V.  Shields,    33    La.    Ann. 
1410 457 

State  V.  SisK.  86  Iowa  746 42 

V.  Simpson,  4  Zabr.  9 287 

V.  Skidmore,  89  N.  C.  509.     22 

V.  Smith,  5R.  L  33 19H 

V.  Smith,  17  R.  L  371 200 

V.  Smith,  13  Kas.  274 290 

V.  Smith,  117  N.  C.  809....  340 
V.  Snow,  117  N.  C.  774....  347 
V.  Si)encer,  21  N,  J,  Law, 
96 362,  393 

State  V,  Spuyn,  67  Vt.  502 160 

V.  State    Board,    etc.,    84 
Minn,  387 453 

State  V.  State.  2  Yerg.  272 420 

V.  Stewart,  59  Vt.  273 232 

V.  Stewart,  60  Wis.  587  .. .     82 

V.  Stone,  106  Mo.  1 7 

V,  Sullivan,  9    Mont,  174..     03 
V.  Sutcliire,  18  R.  I.  53....      2 

V.  Swope,  72  Mo.  399 311 

V.  Thompson,  32  La.  Ann. 
796 290 

State  V.  Thompson,  42  Ark,  517,,  289 
V,  Thornton.  26  Iowa  80, . ,  112 

V.  Tomasi,  67  Vt.  312 340 

V.  Townaend,  19  Or.  213..     17 


PAGE 

State  V.  Turge,  44  La,  Ann,  165,  107 
V,  Turner,  65  N.  C,  592. . .  140 
V.  Twitty,  2  Hawks  (N.  C), 

499 115 

State  V.  Ulrich.  110  Mo,  350 8 

V,  Waldron,  16  R,  L  191,,  428 

V,  Ward,  48  Arks,  36 289 

V,  Warden,  94  Mo,  648, ,, ,  402 
V,  Webster,  13  N,  H,  491, ,  353 
V,  White,  8  Wash,  230. ...  55 
V.  Whitman,  6  Allen,  562. .  40 
V.  Whitt,  17  N.  C.  804....  97 
V.    Williams,  40  W.    Va. 

208 139 

State  V.  Williams,  40  S.  C.  373. .  402 
V.  Wilson,  38  Conn.  126. . .  353 

V.  Witt,  34  Kas.  488 147 

V.   Wolcott,   21  Conn.   272 

111 133 

State  V.  Wright,  53  Me.  328 200 

St. Clair  v.  United  States,  154  U. 

S.  134 168 

Stei)hens  v.  State,  Wright  (Ohio) 

73 ; 267 

Stetinious  v.  United  States 193 

Stitz  V.  State,  104  Ind.  359 147 

Stokes  V.  People,  53  N.  Y.  174. .  443 

Studsill  V.  State,  7  Ga.  2 51 

Sullivan  v.  State,  07  Miss.  346. . .     72 
Sultan,  In  re,  115  N,  C,  57 302 

T 

Taylor  v,  Reg,.  12  B,  25 405 

Temjile  v.   Summer,   Smith  (N, 

H.)226 353 

Territory  v,  Guthrie,    2    Idaho, 

398 48 

Territory  v.  Me  Andrews,  ilont, 

158 53,    55 

Thistlewood's    Case    (1820),     33 

How.  St.  Tr.  081 365 

TiiouKis  V.  State,  27  Ga.  287 460 

Thompson  v.  Com.,  1  Mete.  (Kv.) 

13    25 

Tlion)i)son  v.  State,  24  Ga.  297. .  460 
V.  State,  38  Ind.  39. . .  107 
V.  United  States,  155 

U.  S.  27 444 

Tip  V.  State,  14  Lea.  502 280 

Town  of  Lexington  v.  Wise,  24 

S.  C.  163 ; 402 

Town  of  Troy  v,  Cheshire  R,  Co,, 

23  N,  H,  83 30 

Towzer  V,  Railroad  Co,,  105  N,  Y, 

059 174 

Travis  v.  Com,,  90  Ky,  77 25 

Tucker  v.  State,  57  Ga,  503 140 

Tug  V,  Gorgas,  10  Ben,  Adm,  46, 

471,  161 
Turner  v.  City  of  Newburgh,  109 

N,  Y,301 174 


I  W"v 


XIV 


AMERICAN  CRIMINAL  RErORTS. 


82  How.  St.  Tr. 


PAGE 


365 


Turner's  Case, 

954-964 ■•;•• 

Turnpike  Co.  v.  Heil,  118  Ind. 

jy(j    1(n 

TweedV'v.'Rush.'Kirby,  13  .....  'fp 
Tyssen  \.  Clarke,  Wils.  541,  560  8i)7 


PAOE 
Van  Scpiron.  In  re,  43  Nobr 772 


487 
889 


F 


255 
290 


Unger  v.  State,  42  Miss.  643 140 

Unitetl  States  v.Battiste,2  Sumni. 

240 188 

Uniterr  States  v.   Bennett,    16 

Blatchford,  338 

United  States  v.  Bomeman,  36 

Fed.  Rep.  257 

United  States  v.  Carll,  105  U.  S. 

611 285 

United  States  v.  Chase,  27  Fed. 

Rep.  807 254 

United  States  v.  Clark,  87  Fed. 

Rep.  106 254 

United  States  v.  Cook,  17  Wall. 

168 285 

United  Stiites  v.  Cruikshank,  03 

U.  S.  542 285 

United  States  v.  Greatliouse.  4 

Sawy,  457 193 

United  States  v.  Keller,  19  Fed. 

Rep.  633 194 

United  States  v.  Kilpatrick,  16 

Fed.  Rep.  765 462 

United  States  v.  Morris,  1  Curt. 

62 219 

United  States  v.  Northway,  120 

U.S.  327 285 

United  States  v.  Riley,  5  Blatcli. 

204 193 

United  States  v.  Shive,  1  Baldw. 

510 188 

United  States  v.  Taylor,  3  Mc- 

Crary,  500 218 

United  States  v.  Wilson  &  Porter, 
1  Baldw.  78 188 


Veatcli   V.  State,  50  Ind.   584. . . 
Verniilyea,  Ex  parte,  6  Cow.  555, 

w 

Waf,'ner   v..  Railroad    Co.,    23 

Ohio  St.   563 86 

Walker V,  State,  91  Ala.  70...  83 
Wail,  Ex  parte,  107  U.  S.  1^05. . .  454 
Waid    V.  State,  78  Ala.  441  ....  280 

V.  State,  28  Ala.  53 64 

V.  Wilms,  10  Colo.  80....  174 
Watson  V.  Com.,  95  Pa.  St.  434. .  113 
Wendell  V.  State.  40  Nebr.  833..  30 
Wheeler  v.  United    States,   159 

U.  S.  533 445 

Whitnerv.  Hamlin,  13  Fla.  18..  383 
V.  State.  40  Nebr.  144.. 45,  56 
Whitebrefnrs  Case,    7  How  St. 

Tr.  311,319 305 

Wliitnev  V.  State  83    lex.   Or. 

Rep.  173 40 

WiuKJns  V.  People.  93  U.  S.  405.  443 
Wilcox  V.  Novie,  34  Ohio  St.  530.  300 
Wilks  V.  Shields.  03  Minn.  430..  4S9 
Williams  v.  State,  113  Ind.  514. .  453 
V.  State,  33  Miss.  389. .  203 
V.  State,  105  Ala.  90. . .  227 
Willis  Caise  (1820),  5  How.  St.  Tr. 

531 365 

Wilson,  Ex  parte,  114  U.  S,  417.  260 
V.  State,  84  Ala.  436....  226 
Winfieldv.Jelferys,  1  Ld.  Kaym. 

284 235 

Wo  Lee  V.  HopTiins,  118U.  S.  356  160 

Wolf  V.  State,  53  Ind.  30 83 

Woodloy  V.  State,  103  Ala.  23. . .  04 
Woodruff  V.  People,  62  N.  Y.  117  30 
Woon,  In  re,  18  Fed.  Rep.  898.. .  309 
Wright  V.  Dunham,  13  Mich.  414    88 


Young  V.  Com.  8  Bush.  366. .  .25,  428 
V.  Stiite,  19  Tex.  Anp.  530  433 
V.  State,  68  Ala.  56U 220 


h  It 


AMERICAN 


CRIMINAL  REPORTS. 


Ckow  v.  State. 
(96  Ga.  297.) 

Abandonment:    Alxindotimcnt  of  Child  by  Father  —  Mliat  Constitutes. 

1.  Abandonment,  dejienclency,  and  destitution  are   each  equally  essential 

to  the  coinmisaion  of  the  offense  under  the  (Jeorgia  statute,  and  its  re- 
(juirements  are  not  met,  in  a  prosecution  thereimder,  by  showing  an 
abandonment  by  the  fatlier  of  his  minor  child,  and  its  dependence 
u|M)n  another,  but  it  must  also  be  shown  that  the  child  was  left  in  a 
destitute  condition. 

2.  Where,  under  an  indictment  for  such  an  offense,  the  evidence  shows  that 

the  father,  before  the  birth  of  a  child,  abandoned  its  mother;  that  she 
thereafter  lived  with  her  father,  who  voluntarily  supported  her;  tliat 
the  father  of  the  child,  upon  recpu^st  of  the  mother,  made,  from  time 
to  time,  suitable  provision  for  its  siipport,  and  never  atany  time  refused 
to  make  adequate  i)rovision  therefor,  a  verdict  of  guilty  is  unwarranted 
by  the  evidence,  and  a  new  trial  should  be  awarded. 

Error  from  Snj)erior  Court,  Cobb  County;  Hon.  G.  F.  Gober, 
Judge. 

Anthony  Crow  was  convicted,  under  Code,  §  4373,  for 
abandoning  his  child,  and  brings  error.     Reversed. 

Section  4373  provides,  tliat  if  any  fall) or  shall  wilfully 
abandon  his  child  or  children,  leaving  them  in  a  destitute  con- 
dition, such  father  shall  be  guilty  of  a  misdemeanor. 

A.  ]V.  Ehmrdti,  T.  B.  Irwin,  and  D.  P.  Zesier,  for  plaintiff 
in  error. 

Geo.  R.  Brown,  Solicitor  General,  for  the  State. 

(1) 


t ' 


i  I 


SSwWch-^"*n  :  r  of  <i;;.«te  destitution. 
aZdent  does  not  -"^^^.^^Xt*,  andyetdepe^^^^^^^ 
Tbe  child  may  be  cared  or  and  co,  ^    „t,etor  f  nend 

i„ some  charity;  ta^l'=f't„  'kindness,  feeding  and  clotlnng 
°;  other  uuthor  of  b«»7';"' Sed  to  allege  that  the  eluld 
t7i,thatcasethe.»"^'»    .„„_    ,,^,  Chief  Jnst.co 

had  been  left  J^f^item  that  the  strength  of  the  cr.me 
farther  says:    "I*  ^''"  ?,tlascal«ted  of  mnch  smew  and 
^  defined  in  «h»  .*'"^;  ''a  the  crime  is  not  substant.dly 
^scle  by  the  indictment  and^tl  e       ^^  .^ 

charged."  I"  *^^m^bnt  the  eridence  wholly  fads 
mentare  techmcally  accnmte,  ^^  ^^^^  ^^^^  i„  adest.tute 
to  sustain  the  P'ot"""' *"'  '^'ttaony  of  the  mother,  who 
condition.  Accordmg  to  *"  J»'  /,^  (,,ti,cr  made  ample 
1  the  principal  witne^  ■»  *;  S' .Xue  to  its  condition 
provision  tor  the  support  of  the  c^'     ^„„„,i„g  to  his  abU.ty 

„  life.    Of  his  »«;'«  '',V[™  "erfailed  to  res,«nd  when  ad- 

a„d  she  testified  that  ^'^"^^^^r^^.  Many  eases  occur  in 
visedof  thenecess*esofh.so^P  n        ^^^^^^^^  _^^^,^^  ^,,^ 

human  «^P»f  ^  "''„r/„  ^d ^nts  than  when  its  wants 
tender  care  of  ''^f  ?f,  J  taprovident  and  shiftless  parent, 
are  left  to  be  supplied  by  f°  ""P™^  destitution  is  proven 

xrirCsig^^-^^^^^^^^^ 

:dXrgi:::iCSt':Aothe..hoaret,.e.. 

b,  the  «lte.  d».  Bot '' '«™ 'r„'^Tj'C  i  »ite,  »!"«« '-o  ""  o"'"'" 
«.  StttcHire,18R.I.53. 


STATE  V.  BOBBST. 


8 


Divorce  suit  no  defense. — On  prosecution  of  one  for  unreasonably  neg- 
lecting to  provide  for  support  of  his  wife  and  minor  children,  a  decision 
in  a  divorce  suit  by  such  person,  denying  his  wife's  motion  for  aliraouy 
pendente  lite  is  not  admissible,  not  only  becnusu  such  decision  ia  not  de- 
terminative of  the  (juestion  involved  on  the  prosecution,  but  because  the  par- 
ties to  the  suits  are  different. 


State  v.  Bobbst. 


(131  Mo.  328.) 


II 


Abduction:    For  purpones  of  concubinage— Harmless  error—Instruction— 

Trial — lieniurks  of  counsel. 

1.  In  a  prosecution  for  taking  away  from  her  father  a  femala  under  the 
a'^e  of  eighteen,  for  the  purpose  of  concubinage,  it  is  not  reversible  error 
to  admit  evidence  that  the  father  sent  the  girl  money  with  which  to  re- 
turn home. 

3.  Under  Rev.  St.  18S9,  §  3184,  providing  for  tlie  punishment  of  "  any  per- 
son who  shall  take  away  any  female  under  the  age  of  eighteen,  from 
her  father,  *  *  *  for  the  purposes  *  *  *  of  concubinage,"  de- 
fendant may  be  convicted,  tliougb  the  female  was  previously  unchaste. 

3.  An  instruction  defining  concubinage  as  "cohabitation"  "  without  being 

lawfully  married,"  is  not  erroneous  as  authorizing  a  conviction  for  a 
single  sexual  act,  or  for  a  night. 

4.  Consent  on  the  part  of  the  female  is  no  defense  to  such  a  prosecution. 

5.  It  is  not  necessary  that  the  taking  away  should  have  been  accompanied 

by  sexual  intercourse;  the  offense  is  complete  when  the  taking  away 
was  for  that  purpose. 

C.  Testimony  of  prosecutrix  that  she  thought  she  would  return  home  from 
a  cert^iin  point  on  the  route  taken  by  defendant  and  herself,  when 
ahe  left  houie,  does  not  conclusively  show  that  defendant  did  not  intend 
to  coliabit  with  her  for  any  length  of  time,  so  as  to  prevent  a  convic- 
tion. 

7.  In  a  prosecution  for  abduction  of  a  female  for  the  purpose  of  concu- 
binage, a  I'eference  of  the  prosecutor  in  his  argument  to  defendant  as 
"  this  infamous,  lecherous  scoundrel"  which  passed  unrebuked  by  the 
coui-t  on  defendant's  objection  thereto,  is  ground  for  reversal. 


Appeal  from  Circuit  Court,  Audrain  County;  Hon.  E.  M. 
Ilughes,  Judge. 

Michael  Bobbst  was  convicted  under  Rev.  St.  1S89,  §  3484, 
which  provides  that  "  every  person  who  shall  take  any  female 
under  the  age  of  eighteen  years  from  her  father,  mother, 
guardian  or  other  person  having  the  legal  charge  of  her  per- 


4 


AMERICAN  CRIMINAL  REPORTS. 


son,  either  for  the  purpose  of  prostitution  or  concubinage 
*  *  *  shall,  upon  conviction  thereof,  be  punished  by  im- 
prisonment in  the  penitentiary  not  exceeding  five  years,"  and 
appeals.    Eeversed. 

Mmmston  tfc  Cullen,  for  appellant. 

li.  F.  Walker,  Attorney-General,  and  Morton  Jonrdan,  As- 
sistant Attorney-General,  for  the  State. 

Gantt   p.  J.    The  defendant  was  indicted  at  the  April 
term,  J  893,  of  the  circuit  court  of  Montgomery  county.    There 
are  two  counts  in  the  indictment     In  the  lirst  he  was  charged 
with  taking  Martha  B.  Butler,  a  female  child  under  the  age 
of  eighteen  years,  fiom  the  custody  of  her  father,  for  the  pur- 
pose of  prostitution.    In  the  second  count,  he  is  charged  with 
having  taken  her,  on  October  12, 1802,  from  the  custody  of  her 
father,  for  the  purpose  of  concubinage  and  cohabitation  with 
him  as  man  and  wife  without  authority  of  law,  and  without 
legal  marriage,  against  the  peace  and  dignity  of  the  state.    lie 
was  acquitted  on  the  first  count,  and  convicted  on  the  second. 
He  obtained  various  continuances  and  a  change  of  venue  to 
Audrain  county.    The  trial  was  had  at  the  Soj)teniber  ad- 
journed term,  1894.    No  reason  appears  why  this  transcript 
was  not  filed  in  this  court  until  July  12,  1805. 

The  attention  of  the  various  circuit  and  criminal  courts  is 
hereby  called  to  the  wholly  inexcusable  delays  that  are  con- 
stantly occurring  by  reason  of  the  failure  to  certify  these  cases 
promptly  to  this  court,  with  the  hope  that  they  will  see  to  it 
that  appeals  are  promptly  certified. 

The  record  substantially  shows  that  Martha  B.  Butler  was 
born  on  the  19th  day  of  Is'ovember,  1875,  and  during  Sej)teni- 
ber  and  October,  1892,  and  at  all  times  prior  thereto,  she  re- 
sided with  her  father,  Isaac  Butler,  and  mother,  in  Montgom- 
ery county.  Mo.;  that  she  had  a  sister  by  the  name  of  Mrs. 
Switzer  living  about  a  mile  from  the  home  of  her  father;  that 
during  September  her  father  allowed  her  to  go  to  the  house  of 
her  sister  temporarily  to  assist  her  in  cooking  for  some  har- 
vest hands;  that  while  at  the  home  of  her  sister  the  defend- 
ant persuaded  and  induced  her  to  leave  the  residence  of  her 
sister,  and  to  accompany  him,  defendant  taking  with  him  a 
wagon  and  buggy;  that  they  started  together,  and  drove  from 


8TATE  V.  BOBBST. 


the  home  of  the  sister,  first  to  Wellsville,  Mo.,  then  to  Mexico, 
Boonville,  and  from  there  to  Guthrie,  Okl.  It  is  sho\.  n  by  the 
testimony  that  at  Mexico  they  were  joined  by  another  female, 
a  Miss  Outenwreath;  that  the  defendant  cohabited  and  had  in- 
tercourse with  Miss  Butler  at  divers  points  along  the  road  from 
Montgomery  county  to  Oklahoma;  that  in  Oklahoma,  where 
she  remained  some  months,  and  until  her  father  sent  her  money 
on  which  to  return  home,  they  lived  and  cohabited  together. 

The  defenses  offered  in  this  case  are  the  bad  reputation  for  the 
prosecutrix,  and  that  when  they  reached  Wellsville,  Mo.,  en 
route  to  Oklahoma,  the  defendant  urged  and  insisted  that  the 
prosecutrix  return  home. 

It  is  very  evident  that  prior  to  this  time  her  ruin  had  been 
accomplished.  It  is  also  in  evidence  that  the  father  of  the 
prosecutrix  made  every  effort  possible  to  ascertain  the  where- 
abouts of  his  daughter,  in  order  that  he  might  compel  her  to 
return  home,  and  that  as  soon  as  he  learned  of  her  where- 
abouts he  sent  her  money  on  which  to  return.  It  is  fairly 
established  by  tlie  testimony  that,  at  the  time  of  the  abduction 
the  prosecutrix  was  under  the  age  of  eighteen  years  though 
an  attempt  was  made  by  the  defendant  to  show  by  one  or  two 
of  the  neighbors  that  she  was  over  the  age  of  eighteen  years 
at  the  time  of  the  abduction. 

Various  errors  are  assigned«for  a  reversal  of  the  judgment. 
There  are  twenty-one  distinct  grounds  for  a  new  trial  set  out 
in  the  motion,  and  twelve  in  the  motion  in  arrest.  Counsel 
who  drew  the  motion  in  arrest  seems  to  have  confused  the 
prosecution  with  some  civil  case,  as  we  find,  among  other 
reasons  for  arresting  the  judgment,  the  following:  "  (3.)  The 
petition  does  not  state  facts  sutHcient  to  constitute  a  cause  of 
action  herein."  "  (5.)  That  the  answer  does  not  state  facts 
sufficient  to  constitute  a  defense  to  plaintiff's  cause  of  action." 
^lany  of  the  other  grounds  are  utterly  meaningless  as  applied 
to  this  case.    We  shall  consider  those  now  urged  in  the  brief. 

1.  There  is  no  merit  whatever  in  the  point  that  the  court 
had  no  jurisdiction  because  no  indictment  had  been  preferred. 
The  record  amply  shows  the  circuit  court  of  Montgomery 
county  convened  and  was  organized  as  required  b}'  the  law, 
the  impaneling  of  the  grand  jury,  and  the  return  of  the  indict- 
ment signed  by  the  prosecuting  attorney,  and  duly  indorsed 
by  the  foreman  of  the  grand  jury,  F.  M.  Hayden,  with  the 


I 


if 


Q  AMERICAN  CRIMINAL  REPORTS. 

clerk's  indorsement  of  filing  thereon  of  April  25,  1893.    State 

V.  lord,  US  Mo.  1.  .    .        ,      ^    , 

2.  There  wis  no  reversible  error  in  permitting  the  father 
of  the  prosecutrix  to  testify  that  he  sent  his  daughter,  the 
prosecutrix,  $16  to  enable  her  to  return  home  from  Oklahoma. 
Defendant  and  his  wife  both  testified  the  girl  went  with  them 
to  Oklahoma,  and  while  we  can  not  see  how  it  was  material 
to  the  issue,  we  can  not  see  how  it  was  prejudicial.  It  seems 
to  us  wholly  immaterial  but  not  hurtful  to  defendant  and  ho 
evidently  took  the  same  view,  as  he  did  not  object  to  it. 

3.  Defendant  assigns  as  error  the  refusal  of  the  trial  court 
to  permit  defendant  to  prove  by  various  witnesses  specific  acts 
of  unchastity.    The  cor.rt  admitted  evidence  tending  to  show 
tiiat  her  general  reputation  for  chastity  and  virtue  was  bad 
but  refused  the  evidence  of  individual  acts  of  this   character 
and  indicated  its  view  of  the  law  by  the  following  instruction  : 
"  The  court  instructs  the  jury  that  the  fact  whether  the  prose- 
cuting witness,  Martha  B.  Butler,  was  a  virtuous  girl  or  not 
at  and  prior  to  the  time  of  her  alleged  taking  away  by  de- 
fendant, or  since,  is  not  involved  in  this  case  and  should  not 
be  considered  by  the  jury  in  determining  the  defendant's  guilt 
as  charged,  but  if  the  jury  believe  from  the  evidence  that  her 
general  reputation  for  chastity  and  virtue  in  the  neighborhood 
in  which  she  lived  is  bad,  that  fact  may  be  considered  by  the. 
jury  in  determining  the  credit  to  be  attached  to  her  testimony 
as  a  witness." 

The  ruling  of  the  learned  circuit  court  is  in  accord  with  the 
decision  of  this  court  in  State  v.  Johnson,  115  Mo.  480.  In 
that  case  this  court,  through  Judge  Burgess,  said:  "We 
think,  as  was  said  in  the  case  of  The  Peojde  v.  Demousset,  (12 
Pac.  788,  by  the  supreme  court  of  California),  that  the  statute 
was  intended  to  protect  the  chaste  as  well  as  to  reclaim  the 
unchaste." 

So  long  as  this  girl  was  under  the  protection  of  her  father, 
the  law  threw  its  protection  over  her.  Its  purpose  was  topro- 
tect  parents  and  guardians  in  their  custody  and  care  of  minor 
females,  without  regard  to  their  chastity,  and  their  families 
from  sorrow  and  disgrace.  The  legislature  might  have  re- 
quired the  girl  to  be  chaste  but  it  did  not,  and  as  against  one 
who  inveigles  the  daughter  or  ward  from  the  roof  of  her  father 
or  guardian  to  lead  with  him  a  life  of  prostitution  or  illegal 


% 

I 


1 


STATE  V.  BOBBST. 


Ir 


concubinage  we  neither  have  the  right  nor  inclination  to  inter- 
polate one  word  that  would  detract  from  its  etfectiveness. 

It  will  be  observed  that,  unlike  the  somewhat  kindred  stat- 
ute for  the  punishment  of  seduction  it  does  not  require  the 
female  to  be  of  good  repute,  and  in  this  respect  jiaterially 
differs  from  the  statutes  of  Iowa  and  New  York  on  this  subject. 

As  this  case  must  be  reversed  for  another  cause,  we  suggest 
that  the  structure  of  the  instruction  is  unfortunate.  Instead 
of  saying  the  fact  whether  she  was  virtuous  or  not  was  not  in- 
volved in  the  case  and  was  not  to  be  considered,  we  think  it 
better  to  have  instructed  the  jury  that  although  they  might 
believe  from  the  evidence  that  the  general  reputation  of  Martha 
B.  Butler  for  chastity  and  virtue  was  bad,  her  want  of  chastity 
constituted  no  justilication  to  any  one  to  take  her  from  her 
father's  custody  for  the  purpose  of  prostitution  or  concubinage, 
but  should  be  considered  by  the  jury  in  weighing  her  testi- 
mony, and  was  admitted  for  that  purpose  only. 

4.  The  third  instruction  is  not  open  to  the  objection  that 
it  improperly  defines  concubinage  or  permits  the  defendant 
to  be  convicted  for  a  single  sexual  act,  or  for  a  night.  On  the 
contrary,  it  expressly  requires  "  a  cohabiting  "  *•  without  being 
lawfully  married,"  which  phrase,  "coj  vi  termini,^'  imports  a 
living  or  dwelling  together. 

5.  There  was  no  error  in  overruling  the  demurrer  to  the 
evidence.  That  defendant  took  the  girl  from  her  home  and 
kept  her  with  him  in  his  journey  to  Oklahoma  is  uncontro- 
verted,and  that  she  was  ignorant  of  his  alleged  marriage  to 
Miss  Outenwreath  until  she  reached  Mexico.  In  the  mean- 
time, to  use  her  own  words,  "  she  had  been  ruined; "  and  when 
he  told  her  she  could  go  homo  she  preferred  going  with  him 
to  hide  her  shame. 

It  was  not  necessary  that  the  taking  away  should  have 
been  accompanied  by  sexual  intercourse.  The  offense  was 
complete  when  he  took  her  for  that  purpose.  His  subsequent 
conduct  in  continuing  that  intercourse,  though  claiming  to  be 
married,  was  evidence  of  his  original  purpose.  Her  willing- 
ness to  go  on  with  him,  when  he  reached  Wellsville  and 
Mexico  is  no  palliation  whatever  of  his  offense.  Her  consent 
constitutes  no  defense.  State  v.  Gibson^  111  Mo.  92;  State  v. 
Hound,  82  Mo.  G79;  State  v,  Johnson,  115  Mo.  480j  State  v. 
Stone,  106  Mo.  1. 


il.-i 


8 


AMEUICAN  CRIMINAL  REPORTS. 


woul 


It  is  insisted  bccnuso  tlio  prosecutrix  sinM  slio  tIion/,Mit  slio 
...jid  go  hack  from  Wellsvillo,  that  tiiis  conclusivoiy  shows 
the  defendant  (lid  not  intend  tocoliabit  witli  her  for  any  length 
of  time.    Wo  do  not  think  it  foHows  at  all.    This  was  evi- 
dence of  her  intention,  not  his.    Tlie  jury  might  well  liuvo 
found  that  she  was  induced  to  go  that  far  with  him  hy  per- 
suasion.   Certain  it  is,  she  testifies  he  promised  to  marry  her 
if  she  would  go  on  to  Mexico.    There  is  no  explanation  why 
this  young  girl  should  bo  traveling,  in  the  night,  from  her 
home,  with  this  man  alone.    She  had  not  been  engaged  by  him 
as  a  servant  with  her  father's  consent;  she  was  not  a  relative 
of  his;  and  her  testimony,  ignorant  as  she  and  hor  family  all 
seem  to  bo,  indicates  she  had  been  induced  to  go  with  defend- 
ant, and  maintain  this  unlawful  relation  with  him,  and  that  it 
continued  for  several  months. 

6.    In  the  closing  argument  to  the  jury,  tho  prosecuting 
attorney  turned  to  the  i)risoner  at  the  bar  of  the  coui  t,  and  de- 
nounced him  as  "this  infamous,  lecherous  scoundrel."    Tho 
counsel  for  defendant  protested,  but  tho  court  deeline<l  to  re- 
buke the  prosecuting  attorney,  and  defendant  excepted.     Wo 
can  not  too  strongly  express  our  disapproval  of  such  language 
and  such  conduct  in  one  charged  with  the  important  duty  of 
representing  the  state  in  a  public  prosecution.    Counsel  liavo 
no  right  to  indulge  in  such  abuse  of  a  prisoner.    Such  lan- 
guage should  have  been  instantly  rebuked  by  the  court.    It  was 
a  serious  contempt  to  the  dignity  of  the  court,  and  an  altogether 
unwarranted  assault  upon  the  prisoner.    Again  and  again  wo 
have  reversed  causes  for  such  conduct,  and  must  and  will  con- 
tinue to  do  so  until  the  prosecuting  attorneys  understand  that 
no  man,  however  guilty,  can  be  punished  in  this  state  with 
our  approval,  until  he  has  had  a  fair  and  impartial  trial.    Tho 
judgment  is  reversed  and  cause  remanded  for  this  misconduct. 
State  V.  Jackson,  95  Mo.  623;  State  v.  Ulrich,  110  Mo.  350;  State 
V.  Fischer,  124  Mo.  460. 

7.    If  the  case  shall  be  again  tried  the  instruction  on  rea- 
sonable doubt  should  be  made  to  conform  to  the  formula  ap- 
proved by  this  court  in  State  v.  Nueslcin,  25  Mo.  Ill,  and  ever 
since  adhered  to. 
The  judgment  is  reversed  and  cause  remanded. 


Sheewood  and  Bukqess,  JJ.,  concur. 


STATE  V.  FLSKE. 


0 


'S(yTR.  —  Wh(itc<)nHfitut(!HnJ]tenne,—\\ulw'.tUm,  or  taking  away  of  a  mun'n 
wife,  wrtK  ii(!coin|»li>*h«'d  by  fraud,  pcrHUiision,  or  f)|t('n  violence,  tliou^'li  tlio 
law  in  iKttli  eaHCH  HU|>|NMeH  force  and  eormtriint,  the  wife  not  Imviii);  Ic^al 
capacity  to  coiment.  T\ui  IxiHliaiid  had  an  action  for  danuiKcH  fur  the  al)- 
doctioM  of  iiift  wife,  and  hy  .Statute  WcHtm.  1,  8  Edw.  I,  c.  in,  tlie  ofTonder 
wiiM  to  >)(^  imprisoned  two  yearH  and  be  fined  at  tlie  pleasure  of  tlie  Kin^-  'i 
Hluck.  Coin.  i:tU.  Tlie  action  in  bi'half  of  a  father  for  the  abduction  of  ii 
child,  a  guardian  of  a  ward,  and  the  like,  Hcems  to  liiivn  >M>cn  confined  at 
common  law  to  the  recovery  of  civil  dainaKc.H.  Tlie  diKdsion  in  the  princi- 
pal cuHc  iH  baKcd  upon  i>road  principlcH  of  morality,  and  in  HUpported  by 
abundant  authority.  So  UmgiiH  the  girl  was  under  her  parentH  roof  she  wa» 
untitled  to  the  proteeition  of  the  law.  Iie;;iHlation  in  every  State  of  Iho 
Union  ought  to  be  ample  to  protect  parents  and  guardianH  in  their  custody 
and  caru  of  minors  without  regard  to  the  question  of  pruviouH  chautity. 


Statk  v.  Fisiiic. 


(60  Vt.  434.) 
Abortion:    Notice  where  advice,  could  he  ohtnincd. 

An  indictment  charged  defendant  with  making  ]iiil)lic,  by  print  and  writ- 
ing, words  and  language  that  gave  information  where  advice  might  lie 
ol)taine<I  for  the  purpose  of  procuring  the  miscarriage  of  a  pregnant 
woman.  i/»7(/,  insulHcicnt,  as  it  ditl  not  allege  the  manner  in  wliich 
the  i)rint  and  writing  were  made  public.     Ross,  C.  J.,  dissenting. 

Exceptions  from  Washington  County  Court;  Rowell,  Judge. 

Iiu  II.  Fisko  was  indicted  for  publishing  information  for 
Oil  using  the  miscarriage  of  a  ])rognant  woman.  A  demurrer 
to  the  indictment  having  been  overruled,  ho  excepts.  Excep- 
tions sustained. 

The  substantial  part  of  the  first  count  alleged  that  the  re- 
spondent 

"  feloniously  and  knowingly  did  cause  to  be  made  public,  by 
]>i'int  and  writing,  words  and  language  that  gave  notice  and 
information  where  advice  and  information  and  medicine  and 
<lirection  might  be  obtained  for  the  jniriioso  of  causing  and 
])rocuring  the  miscarriage  of  a  pregnant  woman;  which  ju'int 
and  writing  is  of  the  tenor  following,  that  is  to  say  : 
"  'Arthur  C.  Bkll,  Esq., 

"  'A  young  girl  by  t!ie  name  of  Coburn  has  applied  to  me 
to  help  her  out  of  a  baby  case.  She  says  it  is  yours.  Her 
mother  wants  to  see  you  at  once,  but  I  have  their  promise  that 
if  I  will  help  her  she  will  keep  quiet  forever. 


10 


AMERICAN  CRIMINAL  REPORTS. 


« '  Now  I  will  take  her  to  my  bouse,  get  her  out  of 
the  scrape,  if  you  will  send  ine  $100-fifty  to  give  the  girl, 
fifty  for  mvself.  She  is  poor,  and  needs  help.  Now,  she  can 
swear  this  onto  you,  and  you  can  not  escape  it.  I  do  not  like 
the  law,  yet  it  is  true. 

"  'I  will  stand  between  yr  u  and  all  harm.  If  you  fear  to 
trust  me,  come  down  and  see  mo.  I  am  with  Dr.  Lance  and 
he  says  tell  you  that  you  can  trust  our  word.  She  will  wait  ' 
till  I  hear  from  you.  If  no  reply  comes,  she  will  send  a  law- 
yer to  see  your  mother.  This  will  force  you  to  marry  her 
or  leave  the  state,  and  you  can  not  esca))e  it.  But  we  will  help 
you  out,  slick  and  clean,  for  $100,  as  we  say,  and  you  will 
never  hear  a  lisp.  I  can  help  her  out  and  have  her  well  in  two 
weeks. 

"  The  girl  is  poor  and  can  pay  us  nothing,  and  we  work  for 
pay,  but  you  can  trust  implicitly  in  what  I  tell  you.  My  part- 
ner. Dr.  Lance,  will  swear  to  this.  Dr.  L  II.  Fiske,  15  Winter 
St.  Moritpelier,  Vt. 

"'Dr.  Fiske  tells  you  the  truth,  and  will  do  all  he  tells  you 
he  will.  He  is  keeping  them  still  till  you  write  us.  J.  D.  Lance, 
M.  D. 

" '  P.  S.  Come  down  and  see  us  in  the  night.  Come  to  my 
house,  15  Winter  street.  No  one  will  see  you.  Ans.  at  once. 
Montpelier.    I.  H.  F.' 

contrary  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided, and  against  the  peace  and  dignity  of  the  state." 

The  second  count  was  like  the  first  except  the  allegation 
was  that  th'  respondent  "did  publish  and  circulate  and  cause, 
to  be  published  and  circulated,"  etc. 


Zed  JH.  Stanton,  State's  Attorney,  and  John  II.  Scntcr,  for 
the  State. 

Dillingham,  Iluse  &  Ilcwland,  Geo.  W.  Winy,  and  II.  W. 
Kemp,  for  respondent. 

Taft,  J.  This  indictment  is  in  two  counts— the  first, 
charging  the  respondent  with  making  public  by  print  and 
writing,  words  and  language  that  gave  notice  and  informa-! 
tion  where  advice  might  be  obtained  for  the  purpose  of  pro- 
curing the  mismarriage  of  a  pregnant  woman;  the  second, 
that  he  did  publish  and  circulate,  and  cause  to  bo  published 


STATE  V.  FISKE. 


11 


and  circulated,  a  certain  writing  containing  words  and  lan- 
guage of  the  same  tenor  as  stated  in  the  first  count.  The  print 
and  writing  are  set  forth  in  each  count.  The  respondent 
under  a  general  demurrer  contends  that  the  indictment  is 
insuflicient.  The  prosecution  insists  that,  as  the  offense  is 
purely  statutory,  it  is  sufficient  to  charge  it  in  the  words  of 
the  act,  as  is  done  in  the  form  given  in  Heard's  Criminal  Law 
(page  351),  of  an  indictment  under  a  statute  substantially  like 
ours.  Ordinarily  it  is  sufficient  to  charge  a  statutory  offense 
in  the  words  of  the  act.  But  if,  from  the  nature  of  the 
o't'ense  the  words  of  the  statute  do  not  clearly  and  definitely 
apprise  the  defendant  of  the  offense  charged  againsthim, 
greater  particularly  must  be  used.  Thus,  in  obtaining  goods 
under  false  pretenses,  the  false  pretenses  must  be  alleged. 
State  V.  Keach,  40  Vt.  113.  So  in  case  of  false  statements  of 
the  distance  a  horse  was  driven,  the  false  statements  must  be 
set  forth.  State  v.  Jackson,  39  Conn.  229.  In  case  of  conspir- 
acy it  is  necessary  to  set  forth  the  acts  specifically  and  show 
the  means  by  which  the  fraud  was  to  be  com}>assed.  Lam- 
he/'t  V.  People,  6  Cow.  (K  Y.)  578.  Indictments  for  voting 
"  not  having  the  legal  qualifications  of  a  voter,"  have  been 
held  insufficient  for  not  specifying  what  qualifications  the 
voter  lacked,  in  Qainn  v.  State,  35  Ind.  485;  State  v.  Bruce,  5 
Or.  68;  State  v.  Moore,  3  Dutch.  (1;.  J.)  105.  A  complaint  sub- 
stantially in  the  words  of  the  statute  for  wilfully  injuring  a 
public  building,  held  insufficient,  in  failing  to  allege  the  par- 
ticular manner  of  the  injury.  State  v.  Costello  (Conn.),  25 
Atl.  477.  One  under  a  statute  forbidding  the  publication  of 
obscene  literature  hold  defective  for  not  alleging  the  manner 
of  ])ublishing.  State  v.  Smith,  17  R.  I.  371.  Kotwithstand- 
ing  the  rule  that  it  is  generally  sufficient  to  charge  a  statutory 
offense  in  the  words  of  the  statute,  it  is  fundamental  in  the 
law  of  criminal  procedure  that  the  accused  must  be  apjn'ised 
by  the  indictment,  with  reasonable  certainty,  of  the  acts  with 
which  he  stands  charged,  and  all  facts  necessary  to  constitute 
the  crime  must  be  fully  and  distinctly  set  forth,  so  as  to  in- 
form the  respondent  with  what  he  stands  charged,  that  the 
court  may  see  a  definite  offense  on  the  record  to  which  it 
may  apply  the  penalty  prescribed  by  law,  and  the  accused 
enabled  to  plead  a  conviction  or  acquittal  in  bar  of  a  subse- 
quent prosecution  for  the  same  offense.    The  Vermont  cases 


11 


¥^A 


?:!',• 


1 1 


12 


AMERICAN  CRIMINAL  REPORTS. 


cited  by  the  state  attorney  are  all  within  the  qualification  of 

the  rule.  ,.  .  i,        ,   ., 

In  State  v.  Jones,  33  Vt.  443,  the  indictment  followed  the 
words  of  the  act-"  did  cut,  injure,  and  destroy"  aqueduct 
pipe,  etc.    The  court  said  : 

'•  The  statute  particularly  describes  the  offense,  in  plain  and 
simple  language.    The  existence  of  no  other  fact  is  necessary 
to  constitute  °the  offense,  than  those  named  in  the  statute;" 
and  held  the  indictment  sufficient.    In  State  v.  Cool;  38  Vt. 
437,  it  was  held  that  the  statute  forbiddin/r  one  to  "  enlist, 
recruit,  or  employ"  any  person,  etc.,  was  of  itself  complete; 
that  it  created  and  defined  the  offense,  and  the  same  ruling 
was  had  in  case  of  an  assault  with  the  "  wicked,  wilful  and 
malicious  intent  to  kill  and  slay,"  in  State  v.  Daley,  41  Vt.  564. 
'     The  respondent's  counsel  have  cited  the  cases  in  this  state 
that  hold  that  an  indictment  in  the  words  of  a  statute  is  insuf- 
ficient.   In  State  V.  Benjamin,  49  Vt.  101,  the  respondent  was 
indicted  for  aiding  one  in  procuring  liquors  to  be  disposed  of 
for  unlawful  purposes.    The  indictment  was  held  defective 
in  not  setting  out  how  the  respondent  aided.    State  v.  UhjiihiH, 
53  Vt.  191,  was  under  a  statute  against  one's  acting  as  agent, 
in  traveling  from  place  to  place,  and  selling  liquor  unlawfully. 
Complaint  held  bad  for  not  alleging  the  name  of  the  principal. 
State  V.  Miller,  GO  Vt.  90,  requires,  in  an  indictment  under  the 
statute  forbidding  a  man's  being  found  in  bed  with  another 
man's  wife  under  circumstances  affording  a  presumption  of 
an  illicit  intention  between  them,  an  allegation  of  what  the 
illicit  intention  was. 

Our  cases  have  always  recognized  the  rule  and  the  excep- 
tions thereto,  and  although  the  same  technical  strictness  in 
criminal  pleading  is  not  required  as  Avhen,  in  iJlackstone's  time, 
IGO  offenses  were  punishable  with  death,  still  it  is  now 
necessary  that  the  substantial  acts  constituting  the  crime 
should  be  clearly  and  distinctly  alleged. 

The  indictment  should  have  alleged  the  manner  in  which  the 
print  and  writing.were  made  public,  and  how  the  writing  was 
published  and  circulated,  or  caused  to  be  published  and  circu- 
lated. It  may  have  been  made  public  by  inintinc  in  a  news- 
paper, by  spreading  circulars  broadcast  through  the  streets,  by 
nailing  it  to  a  telephone  pole,  by  sending  it  through  the  mails, 
by  leaving  one  upon  every  doorstep  in  the  town,  or  in  one 


STATE  V.  SCOTT. 


13 


[1 


of  the  many  other  ways  which  the  ingenuit}'  of  the  modern 
advertisers  might  suggest.  Without  some  allegation  of  the 
mode,  the  respondent  may  well  insist  upon  his  right  given 
him  by  the  organic  law  of  the  land  (Const.  Vt.  c.  1.  art.  10;, 
"  to  demand  the  cause  and  nature  of  Iris  accusation." 

Judgment    reversed,    demurrer   sustained,   indictment  ad- 
judged insufficient  and  quashed,  and  respondent  discharged. 


Ross,  C.  J.,  dissents. 


I 


Note. — Indict >n>mt— Description  of  in^tniment— Variance. — The  fact 
that  an  indictment  charges  an  abortion  as  caused  by  an  instrument,  "the 
name  of  which  is  to  the  jury  unknown,"  does  not  make  a  variance,  though 
a  witness  had  described  the  instrument  to  the  jury.  Com.  v.  Noble,  1C5 
Mass.  13. 

Ei'idcnce  of  defendanVn  f/in"/^— Conviction  sustained  by  evidence  showing 
that  deceased  became  pregnant  by  defendant;  that  defendant  inquired  the 
me<ins  of  producing  an  alwrtion,  and  stated  that  an  appliance  had  been  un- 
successfully used  for  that  purpose,  and  that  he  had  made  arrangements 
with  a  doctor  in  another  city  to  dis[)Ose  of  the  case,  and  "  get  rid  of  it "  ; 
that  after  deceased  returned  she  was  attended  by  a  doctor  employed  by  de- 
fendant; that  defendant  endeavored  to  have  others  marry  deceased;  that 
defendant  administered  a  drug,  which  produced  a  miscarriage;  that  de- 
ceiised,  in  defendant's  presence,  charged  him  with  her  ruin;  that  deceased 
shortly  afterward  dii^d,  and  that  defendant  wanted  deceased  buried 
quickly.    State  v.  EdinonHoii,  liJl  Mo.  348. 

Inntruction. — A  ch.arge  th.at  unless  the  state  proved  tliat  deceased  was 
pregnant,  and  that  defendant  administered  or  caused  to  be  administered, 
drugs  for  the  purpose  of  procuring,  and  whicli  did  procure,  an  aborticm, 
whicli  wiis  the  cause  of  dccciiscd's  death,  the  jury  should  find  defendant 
not  guilty,  required  the  jury  to  find  every  essential  fact  constituting  the 
crime.     Id. 


State  v.  Scott. 
(28  Oregon,  331.) 


Adultery:    ]^i!dcncc  of  accomplice— Corroboration. 

One  who  adiuits  participation  in  ivdultery  is  an  accomplice. 

Where  the  accomi)lice  testified  that  on  a  certain  day,  without  previous 
iign'ement,  she  met  defendant,  shortly  after  abandoning  her  husband, 
and  not  desiring  to  be  seen,  she  reniained  in  the  woods  with  defendant 
until  evening,  during  which  time  thi-y  had  sexual  intercourses  and 
lunched  together;  that  she  subsequently  met  defendant  on  a  train,  anrf 


i' 

'  .1 


r'l 

w 


14  AMERICAN  CRIMINAL  REPORTS. 

later  went  to  a  hotel  with  him,  where  they  had  intercourse;  and  the 
only  corroborating  testimony  was  that  on  said  day  a  witness  put  up  a 
lunch  for  defendant;  that  there  was  no  pre-arranged  meeting  between 
the  parties  in  the  woods;  that  other  witnesses  saw  them  in  the  woods; 
that  defendant  took  said  train  for  another  purpose  than  meeting  said 
accompUce,  and  that  tliey  were  seen  on  the  train  together-the  evidence 
was  insufficient  to  sustain  a  conviction  for  adultery. 

Appeal  from  Circuit  Court,  Lane  County;  J.  C.  FuUerton, 

Judge. 
Duncan  Scott  was  convicted  of  adultery,  and  appeals.    Ee- 

versed. 

Geo.  B.  Dorru  and  Geo.  A.  Borris,  for  appellant. 
0.  M.  Idleman,  Attorney  General,  for  the  State. 

The  defendant,  an  unmarried  man,  having  been  indicted, 
tried,  and  convicted  of  the  crime  of  adultery,  committed  in 
Lane  county  with  one  Louisa  Eabb,  wife  of  A.  J.  Jiabl>,  was 
sentenced  to  imprisonment  in  the  penitentiary  for  the  term  of 
one  year.  From  this  judgment  the  defendant  appeals,  and 
assigns  as  error  the  denial  by  the  court  of  his  request  that  it 
instruct  the  jury  to  find  a  verdict  of  acquittal,    lieversed. 

MooEE,  J.  It  is  disclosed  by  the  bill  of  exceptions  that  said 
Louisa  Babb,  the  person  with  whom  the  adultery  is  claimed 
to  have  been  committed,  testified,  as  a  witness  for  the  state, 
over  the  defendant's  objection,  that,  on  July  12,  1804,  conclud- 
ing to  abandon  her  husband,  she  engaged  one  Sid  Horn  to  come 
to  her  house  after  her  clothing,  which  he  did  on  the  following 
day;  that  she  left  her  home  in  his  company  about  1 1  o'clock 
in  the  forenoon,  and,  after  going  a  short  distance,  met,  with- 
out any  previous  agreement,  the  defendant,  whom  she  did  not 
like,  nor  look  upon  as  her  friend,  that,  not  desiring  to  be  seen 
by  others,  she  remained  in  the  woods  with  the  defendant  until 
about  9  o'clock  that  evening,  during  which  time  she  had  sexual 
intercourse  with  him;  that  while  in  his  company  thev  ate  a 
lunch  consisting  of  pickles,  cheese,  cold  beef  anc'  bread;  that 
at  the  time  last  mentioned  she  went  to  Sid  Horn's  house,  and 
in  an  hour  or  more  thereafter  the  defendant  called  there, 
but  soon  went  away;  that,  on  the  following  morning  at  about 
2  o'clock,  she  left  Eugene  on  the  train  for  Portland  to  seek 


STATE  V.  SCOTT. 


15 


work  and  to  visit  the  coast;  that,  on  entering  a  car  she  saw 
the  defendant,  wlio  told  her  to  go  into  another  car,  which  she 
found  on  entering  to  be  the  smoking  car;  that,  on  arriving  at 
Portland  the  defendant  ordered  a  cab,  and  she  was  conveyed 
to  a  hotel,  where  that  night  she  occupied  the  same  bed  and 
had  sexual  intercourse  with  him.     The  following  evidence 
was  also  offered  and   admitted   over  the  defendant's  objec- 
tion, as  tending  to  corroborate  the  testimony  of  Mrs.  Babb : 
E.  II.  IIow  testified  that  on  July  13,  1894,  he  was  engaged  in 
the   business  of  keeping  a  restaurant  at  Eugene,  and  at  8 
o'clock  in  the  morning  of  that  day  he  put  up  a  lunch  for  the 
defendant,  consisting  of  sandwiches,  pickles,  cheese  and  cake. 
Sid  Horn  testified  that  about  9  o'cloc''  'i  the  forenoon  of  the 
same  day  tlie  defendant  came  to  his  house  and  invited  him  to 
go  fishing,  but  he  declined  the  invitation;  that  he  did  not  tell 
the  defendant  anything  about  his  agreement  to  go  after  Mrs. 
Babb's  clothing,  or  that  she  intended  to  leave  her  husband; 
that  the  defendant  went  with  him  in  the  direction  of  Mrs. 
Babb's  house,  but  remained  at  the  river  fishing,  while  the  wit- 
ness went  to  the  house  after  Mrs.  Babb's  clothing;  that  about 
U  o'clock,  having  obtained  the  clothing,  he  returned  in  com- 
pany with  Mrs.  Babb,  to  the  place  where  he  left  the  defend- 
ant; that  Mrs.  Babb,  not  desiring  to  go  to  the  witness'  house 
until  evening,  remained   with  the  defendant;   that  about  4 
o'clock  in  the  afternoon  of  that  day  he  and  his  wife,  Lillian 
Horn,  saw   the  defendant  and   Mrs.  Babb  together  in  the 
woods;  and  that  the  defendant  on  the  morning  of  July  14th, 
left  Eugene,  to  go  to  Vancouver,  AVash.,  to  get  some  horses 
he  owned.     Lillian  Horn  testified  that  she  saw  Mrs.  Babb  and 
the  defendant  together  iu  the  woods  at  about  4  o'clock  in  the 
afternoon  of  July  13tli;  and,  also,  that  the  defendant  called  at 
her  house  and  saw  Mrs.  Babb  about   10  or  11  o'clock  that 
night,  but  soon  went  away.     T.  G.   Hendricks  testified  that 
on  the  morning  of  July  14,  1894,  he  went  on  the  train  from 
Eugene  to  Portland;  that,  as  he  entered  the  car  at  Eugene,  he 
saw  the  defendant  seated  therein,  and  also  saw  ]V[rs.  Babb 
enter  the  car  with  a  valise,  and  heard   some  one — but  could 
not  say  who — tell  her  to  go  into  another  car.     A.  G.  Mathews 
testified  that  he  saw  Mrs.  Babb  enter  the  smoking  car  of  the 
train,  at  Eugene,  on  July  14th,  and  told  her  she  ought  to  go 
into  another  car. 


16 


AMERICAN  CRIMINAL  REPORTS. 


In  view  of  this  evidence,  it  is  contended  that  Louisa  Babb, 
if  her  testimony  is  to  be  believed,  was  an  accomplice;  that  her 
admissions  and" confession  have  not  been  corroborated  upon 
the  material  issue,  and  that  the  court  erred  in  refusing  to  give 
the  instruction  requested.    "At  common  law,"  says  Strahan, 
J.,  in  State  v.  Jarvis,  18  Or.  360   (23  Pac.  251),  "and  in  the 
absence  of  any  statute  governing  the  subject,  it  Avas  the  prac- 
tice of  judges'to  tell  juries  that  they  might  legally  convict  on 
the  evidence  of  an  accomplice  alone,  if  they  thought  they 
could  safely  rely  on  his  testimony,  but  at  the  same  time,  to 
advise  them  never  to  act  on  the  evidence  of  an  accomplice 
unless  he  be  confirmed  as  to  the  particular  ])erson  who  Avas 
charged  with  the  offense.    1  Whart.  Cr.  Law,  §  785.     And 
Baron  Parke  said  that  it  had  always  been  his  practice  to  tell 
the  jury  not  to  convict  the  prisoner  unless  the  evidence  of  the 
accomj)lice  be  confirmed,  not  only  as  to  the  circumstances  of 
the  crime,  but  also  as  to  the  person  of  the  prisoner."     1  Whar- 
ton on  Criminal  Law,  §  787,  and  authorities  there  cited.     "  It," 
says  Gray,  C.  J.,  in  Oom.  v.  Holmes,  127  Mass.  424-  (3-4  Am. 
Eep.  391),  "has  always  been  held  that  a  jury  might,  if  they 
saw  fit,  convict  on  the  uncorroborated  testimony  of  an  accom- 
plice.   Lord  Hale,  Lord  Ilolt  and  Lord  ]\fansfield  treated  the 
question  of  his  credibility  as  one  wholly  for  the  dctormiiiution 
of  the  jury,  without  any  precise  rule  as  to  the  weight  to  be 
given  to  his  testimony."    But,  Avhatever  the  rule  may  luiA'e 
been  at  common  law,  the  statute  noAV  provides  that  "  A  con- 
viction can  not  be  had  upon  the  testimony  of  an  accomj)lice, 
unless  he  be  corroborated  by  such  other  evidence  as  tends  to 
connect  the  defendant  Avith  the  commission  of  the  crime,  and 
i, :         •oboration  is  not  sufficient  if  it  merely  show  the  commis- 
;vOi?  c!  :''B  crime  or  the  circumstances  of  the  commission." 
JJiii't !  ,(,de  s  1371.    Louisa  Babb's  admission  of  her  participa- 
t;»  u     :  ■'  •  alleged  commission  of  the  crime  makes  her  an 
accomplice,  and  hence  the  corroborative  evidence  necessarv  to 
convict  the  defendant  must  be  such  as  tends  to  prove  adulter- 
ous acts  on  his  part.    Hill's  Code,  §  080.    In  Com.  v.  Jiosworth 
22  Pick.  399,  Morton,  J.,  in  commenting  upon  evidence  in  cor- 
roboration of  the  testimony  of  an  accomplice,  says:     "The 
mode  of  corroboration  seems  to  be  less  certain.    It  is  perfectly 
clear  that  it  need  not  extend  to  the  Avhole  testimony;  but  it 
being  shown  that  the  accomplice  has  testified  truly  in  some 


STATE  V.  SCOTT. 


17 


particulars,  the  jury  may  infer  that  ho  has  in  others.  But 
what  amounts  to  corroboratiofi  ?  "We  think  the  rule  is  that 
the  corroborative  evidence  must  relate  to  some  jwrtion  of  the 
testimony  which  is  material  to  the  issue.  To  prove  that  an 
accom])lice  had  told  the  truth  in  relation  to  irrelevant  and 
immaterial  matters,  which  were  known  to  everybody,  would 
have  no  tendency  to  confirm  his  testimony  involving  the  guilt 
of  the  party  on  trial.  If  this  were  the  case,  every  witness  not 
incompetent  for  the  want  of  understanding,  could  always  fur- 
nish the  materials  for  corroboration  of  his  own  testimony.  If 
hecould  state  where  he  was  born,  where  he  had  resided, in  whoso 
custody  ho  had  been,  or  in  what  jail  or  in  what  room  in  the 
jail  he  had  been  confined,  he  might  easily  get  confirmation  of 
all  these  particulars.  I>ut,  these  circumstances  having  no  nec- 
essary connection  with  the  guilt  of  the  defendant,  the  proof  of 
the  correctness  of  the  statement  in  relation  to  them  would  not 
conduce  to  prove  that  a  statement  of  the  guilt  of  the  defend- 
ant was  true.'' 

In  State  v.  0<leU,  8  Or.  30,  one  William  George,  an  ac- 
complice, testified  that  ho  and  the  defendant  waited  outside 
while  anotlier  person  went  into  the  building,  and  brought 
out  the  property  described  in  the  indictment.  The  testi- 
mony of  oilier  witnesses  tended  to  prove  that  the  defend- 
ant was  in  the  town  in  which  the  theft  was  committed,  about 
the  time  of  the  commission  of  the  alleged  crime,  and  that 
a  sack  of  flour  was  missed  from  the  ])lace  wliere  the  lar- 
ceny was  alleged  to  have  been  committed,  but  it  was  there 
held  that  such  evidence  did  not  tend  to  connect  the  defendant 
witli  the  commission  of  the  crime.  In  State  v.  l^ncnsend,  lit 
Or.  '2i;J  (:i;3  Pac.  9(!8),  an  accomplice  testified  tliat  he  and  tlie 
defendant  stole  a  cow,  wliich  they  drove  from  the  pasture  of 
the  owner,  and  in  pursuance  of  a  ;)reviv>us  agreement,  deliv- 
ered to  other  ])ersons,  at  rendleton,  at  Avhich  place  she  was 
butchered.  The  corroborative  evidence  was  the  testimony  of 
a  witness  who  said  that  on  January  If,  1SS9,  at  about  8 
o'clock  in  the  evening,  the  accomplice  left  the  house  at  Avhich 
the  witness  was  then  staying,  which  was  between  four  and 
five  miles  from  l*endleton,  and  a  short  distance  from  the  ])as- 
ture  from  which  the  cow  was  stolen;  that  a  little  later  the 
accomplice  returned  in  company  witii  the  defendant,  v>-hom  he 
introduced  under  an  assumed  name;  that  the  defendant  and 
2 


M 


^t 


18 


AMERICAN  CRDUXAL  KEPOUTS. 


accomplice  together,  soon  thereafter  left  the  house,  and  the 
next  day  he  heard  the  cow  was  missing,    1'iie  owner  of  the 
cow  also  testified  that  she  was  stolen  from  his  pasture  on  the 
night  of  January  14,  18S9.    The  state  having  rested,  the  coun- 
sel for  the  defendant  moved  for  a  non-suit  on  the  ground  that 
there  Avas  not  suiricient  evidence  of  the  defendant's  guilt  to  be 
submitted  to  the  jury;  Lord,  J.,  commenting  upon  the  facts  as 
elicited  from  tlie  corroborative  evidence,  says  :    "  They  sliow 
that  the  defendant    was    not   only  in  the    vicinity   when 
the  crime  was  committed,  but  that  he  was  there  unih^r  a 
false  name,  and  at  night,  and  under  circumstances  not  lilcely 
to  occur  without  concert  between    him  and  his  accomplice 
in  furtherance  of  some  common  enterprise.    In  such  case  it 
can  hardly  be  said  that  the  facts  do  not  tend,  in  some  degree, 
to  connect  the  defendant  with  the  commission  of  the  crime." 
If  there  was  any  other  evidence  of  the  adulterous  act,  or  of 
facts  from  which  it  could  be  inferred,  and  it  was  souglit  to 
prove  the  defendant  guilty  of  it,  the  proof  of  theop]>ortunity., 
and  the  corroborating  evidence  of  circumstances  surroundin"* 
it,  might  possibly,  under  the  rule  thus  announced,  be  held  sulH- 
cient  to  warrant  a  conviction.    But  in  that  case  the  ci'inie 
was  susceptible  of  proof  by  the  person  who  lost  the  animal, 
■while  in  the  case  at  bar  the  only  evidence  of  the  commission 
of   the  crime   is  the  testimony  of    the  accomplice  herself. 
"What  appears  to  be  required,"  says  Roscoe,  in  his  work  on 
Criminal  Evidence  (volume  1,  *p.  133,)  "  is  that  there  should 
be  some  fact  deposed  to,  independently  altogether  of  the  evi- 
dence of  the  accomplice,  which,  taken  by  itself,  leads  to  the 
inference,  not  only  that  a  crime  has  been  committed,  but  that 
the  prisoner  is  implicated  in  it."    Tested  by  this  rule,  we  are 
unable  to  discover  any  evidence,  aside  from  Mrs.  Babb's,  which, 
taken  by  itself,  leads  to  the  inference  that  a  crime  even  has 
been  committed.    There  was  no  agreement  existing  between 
Mrs.  Babb  and  the  defendant  to  meet  on  that  occasion,  nor  is 
there  any  evidence  to  show  a  previous  familiarity  between 
them,  from  which  the  evidence  of  the  defendant's  guilt  can 
be  inferred. 

Mere  proof  of  an  opportunity  to  commit  adultery  is  insuffi- 
cient to  convict  a  person  of  that  crime,  unless  there  be  proof 
also  of  an  adulterous  mind  on  the  part  of  both  parties;  and, 
to  prove  this  state  of  mind,  circumstantial  evidence  is  admis^ 


''a 

and 

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have 

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any^l 

(lef^l 

STATE  V.   SCOTT. 


19 


sible  to  show  a  purpose  or  inclination  to  commit  tlic  act :  Bish. 
St.  Crimes,  §  079.  Mrs.  IJabb's  desire  to  avoid  lior  husband, 
and  to  seek  seclusion,  may  liave  been,  to  her  mind,  a  sufficient 
reason  for  not  wishing  to  visit  Horn's  house  in  the  daytime. 
So,  too,  the  defendant's  purpose  to  catch  fish  must  be  presum(;d 
to  have  been  un  honest  one.  And  because  he  and  ]Mrs.  Babb 
met  on  the  banks  of  the  river,  in  the  woods  even,  ate  a  lunch 
to""ether,  and  were  seen  by  others,  does  not  necessarily  or  in- 
ferentially,  in  the  absence  of  evidence  of  an  adulterous  mind, 
prove  that  they  committed  the  crime  of  adultery;  nor  does  the 
corroborating  evidence  even  tend  to  show  the  commission  of 
a  crime,  or  any  circumstance  from  which  its  commission  can 
be  inferred.  The  evidence  shows  that  the  defendant  went  to 
Portland  on  the  same  train  with  Mrs.  liabb,  but  that  in  mak- 
in""  the  journey  he  had,  at  least,  anotlier  purpose,  which  was 
to  get  his  horses  from  Vancouver,  "Wash.,  while  Mrs.  Babb 
went  to  obtain  work,  and  to  visit  the  coast.  If  there  was  any 
corrol)orating  evidence  of  adulterous  intercourse  bct\veenthem 
at  Portland,  or  if  the  place  to  which  she  went  was  a  brothel, 
and  it  was  proven  that  the  defendant  met  her  there,  it  might 
have  been  sufficient  to  infer  the  commission  of  the  offense 
at  the  time  and  place  alleged  in  the  indictment.  (Bish.  St. 
Crimes,  §  CS2.)  But  the  evidence  of  Mrs.  Babb  as  to  their 
conduct  in  that  city  is  not  corroborated  by  any  circumstance, 
except  that  she  and  the  defendant  were  seen  on  the  same  train 
at  Eugene.  From  an  examination  of  all  the  testimony  in  sup- 
port of  Mrs.  Babb's  statements,  we  conclude  that  it  does  not 
corroborate  the  material  issue,  or  present  facts  from  which  the 
commission  of  the  crime  can  reasonably  be  inferred,  and  hence, 
under  the  statute,  was  insufiiciont  to  support  the  conviction, 
and  that  the  court  erred  in  refusing  to  give  the  instruction 
requested,  lor  which  reason  the  judgment  is  reversed,  and  a 
new  trial  ordered. 


Note. — Name  alleged — Varianee. — Where  the  indictment  charged  the  de- 
fendant with  adultery  witli  a  woman  by  a  certain  name,  and  tlie  evidence 
showed  that  he  had  committed  adultery  with  a  woman  of  a  different  name, 
instructions  that  the  state  must  prove  tliat  the  woman's  name  was  as  given 
in  the  indictment,  or  that  she  was  sometimes  known  by  that  name,  were 
proper.    Henderson  v.  State,  105  Ala.  139. 

Evidence  of  good  character, — In  all  cases  a  person  accused  of  a  crime  of 
any  grade,  whether  a  felony  or  a  misdemeanor,  has  a  right  to  offer  in  his 
defense  testimony  of  hia  good  character.    State  v.  Henry,  50  N.  C.  C5; 


>  M' 


'  n 


30 


AMERICAN  CRIMINAL  REPORTS. 


State  V.  Johnson,  CO  N.  C.  l.ll;  State  v.  Di.vton,  70  N.  C.  2in:  3  Am.  &  En-. 
Enc.  Law,  111.  This  rislit  is  not  ik'i)ciiik'iit  upon  tlic  (IffViidanfa  liaviiiK 
bwii  examined  as  a  witness  in  liis  own  belialf,  and  was  recognized  lonj,' 
before  defendants  were  made  competent  to  testify.  It  is  limited  toevidenee 
of  general  character,  and  opens  the  door,  which  would  be  otiierwise  closed, 
to  the  prosecution  to  sjiow  the  ilefendanfs  bad  character,  either  by  cross- 
examination  or  by  other  witnesses.  Rex  v.  Stamml,  7  Car.  &  P.  073;  3 
Hawk.  P.  C.,c.  40,  §  194.  In  excluding  tlie  testimony  there  was  error. 
Stale  V.  Hieeet  al,  117  N.  C.  782. 


!■      i 


i 
J 


1 


State  v.  Goff  et  al. 

(117  N.  C.  755.) 

Affray:    Witnesses— Impeachment— Competency  of  evidence. 

1.  Where,  on  trial  of  four  persons  for  an  affray,  three  of  them  have  testi- 

fied, and  the  fourth,  who  was  their  antajronist,  is  called  in  his  (»wn  be- 
half, his  co-defendants  have  the  same  right  to  impeacii  him  a.s  though 
he  were  a  state's  witness. 

2.  On  the  trial  of  several  persons  for  an  affray,  evidence  tliatone  of  tin- 

defendants,  who  was  the  antagonist  of  the  others,  had  stated  to  tliiid 
pei-sonson  the  day  of  the  difficulty  that,  if  one  of  his  co-defendants  canit 
to  his  house  that  night,  he  must  kill  him,  though  admissible  for  the 
purpose  of  impeiichment,  is  incompetent  to  \mn-v  m(iti\e. 

8.  It  is  error  to  exclude  testimony  offered  lor  seviTal  purposes,  if  it  is  com- 
petent as  to  one  of  them. 

4.  Error  in  excluding  evidence  which  is  competent  for  tlie  pui-pose  of  im- 
peachment can  only  be  remedied  by  iwuVe  f/e  j(oro,  though  the  facts 
excluded  may  have  been  subsequently  brought  out  by  other  witnesses. 

Appeal  from  Superior  Court,  Greene  County;  Graluini, 
Judge. 

John  Goff,  James  and  Frank  Kearney,  and  George  Goro-anus 
were  jointly  indicted  for  an  affray,  and  the  first  tliree  defend- 
ants (appellants)  named,  being  convicted,  a])peul.    lievorsed. 

Messrs.  Sioift,  Galloicaij  and  J.  B.  Batchelor,  for  defendants. 
The  Attorney  General  for  the  State. 

Avery,  J.  This  was  an  indictment  for  an  affray  in  v.-hieh 
the  theory  of  the  state  was  that  the  defenchants"  John  Goff 
and  the  two  Kearneys  were  the  guilty  combatants  on  the  one 
side,  and  the  defendant  Gerganus,  who  was  acquitted  by  the 


'•j^;*. 


STATE  V.   GOFF  ET  AL. 


21 


jury,  was  a  willing  particij)ant  on  tho  other  side.  After  offer- 
ini>;  two  witnesses  on  belialf  of  tlio  state,  tlie  solicitor,  follow- 
ing the  usual  i)ractieo,  rested,  and  gave  the  parties  tho  oppor- 
tunity each  to  olfer  testimony  criminating  his  antagonist  or 
antagonists  in  order  to  oxculj)ate  himself.  In  sucii  a  contest 
tho  witnesses  for  the  one  side  stand,  as  to  the  parties  on  tho 
other,  in  tho  relation  of  prosecuting  witnesses  and  defendants, 
and  hence  it  is  tiio  universal  practice  to  compel  them  to  submit 
to  cross-examination  with  all  of  tho  rights  which  are  incident 
thereto  when  they  are  examined  in  chief  on  behalf  of  tho 
State.  Tho  appellants  had  introduced  their  testimony  and 
when  Gerganus  was  upon  the  stand,  as  a  witness  in  his  own 
behalf,  the  other  defendants  had  the  same  right  to  impeach 
him  on  cross-examination  as  though  he  had  been  a  witness  on 
bi!lialf  of  the  State,  instead  of  a  co-defendant.  The  state 
might  have  impeached  him  {State  v.  J'^fler,  85  N.  C.  585),  and 
tiie  same  privilege  should  have  been  allowed  to  his  co-defend- 
ants. If  the  questions  j)ro])ounded  by  the  counsel  for  defend- 
ants tended  to  elicit  testimony  showing  tho  temper  and  bad 
blood  of  Gerganus  toward  his  co-defendants,  and  was  offered, 
not  alone  as  substantive  testimony  against  him  as  a  defendant, 
but  also  in  order  to  imi)each  him  as  a  witness,  it  was  unques- 
tionably competent  to  examine  the  witnesses,  whoso  names 
had  been  mentioned  in  connection  with  the  time  and  place  of 
making  the  declarations,  to  contradict  his  denial  that  he  made 
them.  State  v.  Pattti'.^(in,  2  Ired.,  340;  State  v.  Sam,  8  Jones,  150. 
Tho  history  of  the  ruling  excei)ted  to  and  assigned  as  error,  as 
it  appears  in  the  statement  of  the  case,  is  as  follows  :  "  During 
the  defendant  Gerganus'  cross-examination,  he  was  asked  by 
counsel  for  defendants,  Goff  and  tho  KcMirneys,  this  question, 
namely:  *On  tho  day  of  the  night  of  that  difficulty,  did  you 
not  tell  Merrimon  Ginn,  at  your  house,  that,  if  Goff  and  his 
friends  came  to  your  house  that  night,  you  would  kill  a  man  'i ' 
The  witness  answered  that  he  did  not.  lie  was  then  asked,  on 
behalf  of  the  same  defendants,  this  question,  namely:  '  On  the 
same  day,  and  at  tho  same  i)lace,  did  you  not  tell  Thomas 
Kearney  that  you  wore  expecting  John  Goff  at  your  house 
that  night  and  if  he  came  you  would  kill  him  or  hurt  him 
ba<lly  ? '  This  was  also  answered  in  the  negative.  On  the  con- 
clusion of  tho  testimony  on  behalf  of  Gerganus  no  further 
evidence  being  offered  by  the  state,  tho  defendants  John  Goff, 


I 


1,1 


I'll'',  iji 


'yiJ:' 


:• 


22 


AMERICAN  CRIMINAL  REPORTS. 


James  Kearney  and  Frank  Kearney  called  in  jforrnnon  Ginn 
and  Thomas  Kearney,  the  persons  referred  to  in  the  cross- 
examination  of  defendant  Ger^ninns.  and  both  of  whom  had 
been  duly  sworn.    His  honor  incjuired, 'For  wliat  jnu-poso 
were  these  witnesses  called  in  'i '    The  connsel  for  (io(f  and  tho 
Kearneys  informed  the  court  that  he  proposed  hy  these  wit- 
nesses to  contradict  Ger;Lfanus  as  to  the  tin-eats   referred  to, 
and  to  prove  the  declarations  of  Ger^Mnus  as  set  out  in  tho 
questions  specified,  and  this  was  to  show  the  animus  of  that 
defendant  toward  Jor.<\  (JofF  and  James  and  Fi-ank  Kearney 
as  alFectin;?  his  testhnony,  as  well  as  to  account  for  his  conduct 
on  the  ni^W)t  of  the  dilHculty.    Merrimon  Ginn  was  then  first 
offered  with  that  view.    The  court  refused  to  permit  the  wit- 
ness to  testify  on  the  point  named,  Tiud  stated  that  it  would 
not  allow  the  proposed  testimony  from  either  of  the  witnesses 
as  the    matter  was  collateral.    Defendants  John  GofF  and 
James  and  Frank  Kearney  executed  to  this  rulin<,^" 

If  the  testimony  was  competimt  for  either  of  the  purposes 
indicated  by  counsel  for  the  apj)el)ants,  it  was  error  to  exclude 
it.  It  was  clearly  not  competent  to  exj)lain  the  conduct  of 
Gerganus  by  connecting  it  with  proof  of  motive.  The  ^uilt 
or  innocence  of  Gerganus  depended  entirely  upon  the  facts 
and  circumstances  connected  immediately  with  the  transaction. 
Sfate  V.  Norton,  82  N.  C.  623;  State  v.  Jlarrdl,  107  N.  C.  i>44; 
State  V.  Sk'ulmore,  87  K  C.  5(J9. 

If  the  court  had   admitted  the    testimony  to  contradict 
Gerganus  it  would  have  become  necessary  to  caution  the  jui'y 
to  consider  it  only  for  the  purpose  of  impeaching.     Jiut  it  is 
not  the  less  error  to  exclude  testimony  offered  for  a  purpose  for 
which  it  is  competent,  because  coupled  with  that  order  is  a  pi-op- 
osition  which  is  not  tenable  to  admit  it  on  another  (rround. 
Such  an  error  is  not  cured  even  by  allowing  other  witnesses  to 
testify  to  the  very  same  facts  which  were  excluded  on  a  cross- 
araination,  but,  said  Pearson,  C.  J.,  in  Sfate  v.  Murray,  63  K  C. 
31,  «  can  only  be  remedied  by  venire  <h  novoP  "  It  is  true  that 
Gerganus  testified  to  facts  which,  if  believed,  Avould  liave  cor- 
roborated the  defendant  Gerganus,  and  tended  to  show  that 
John  Goff  and  the  two  Kearneys  fought  willingly.    lint  the 
jury,  if  they  believed  the  oUier  witness  for  the"sta*te,  Joseph 
Goff,  might  have  inferred  that  the  other  defendants  did  not 
fight  willingly,  and  used  no  more  force  than  was  necessary  to 


I! 


THE  QUEEN  V.  WAUDDY. 


23 


(lisiinn  tlin  defendant  Ger^anns  and  provide  U>v  their  own 
siit'ety.  Tliey  all  testified  to  substantially  tlie  same  state  of 
liu'ts  as  .losepli  Goir.  As  tlio  testimony  of  Henry  (ier<;anus 
an<l  his  kinsman  woidd,  it  seems,  if  believed,  liave  loft  no 
d(»ul>t  as  to  the  guilt  of  the  other  three,  it  was  all  important, 
in  view  (»f  such  a  coidlict,  that  the  three;  appellants  should 
h:ive  the  benelit  of  any  competcMit  impeaching  testimony. 
J^^Di  citHxttit,  if  it  had  been  admitted,  but  that  (ierganus  might 
have  been  found  guilty,  and  they  might  have  been  aecpiitted. 
It  may  bo  that  the  testimony  of  lltmry  (ftu'ganus,  going  to 
the  jury,  as  it  did,  unim|ieaeli(Ml  and  corroborated  by  that  of 
llcnry,  led  them  to  give  credit  to  him,  inst(>ad  of  to  Jcjsepli 
(iotf  and  the  three  appellants,  Whatever  would  have  been 
the  result,  if  no  erroneous  ruling  had  been  made,  or  whatever 
may  bo  the  conse(pien:'e  hereafter,  it  seems  clear  that  tin;  ap- 
jK'llants  have  been  depiived  of  testimony,  of  which  wo  know 
not  the  weight  or  worth,  to  the  benelit  of  which  they  are 
justly  entitled.  The  cases  of  Slatv  v.  lidlhird,  1>7  N.  C,  443, 
and  Clitvh  v.  Chn-h\  05  X.  (,',,  (!."».'>,  are  not  in  conflict  with  tho 
])rincii)les  we  have  stated  as  govei-ning  this  case.  Tiiere  was 
no  projiosition  in  the  case  at  bar  to  go  into  particulars  of  other 
transactions  or  dilliculties.  and  set  them  upas  tending  to  show 
bias.  In  such  case,  the  danger  of  raising  nundxM'less  issues  to 
distract  the  minds  of  tho  jury  would  bo  obvious.  IJuttho 
])roposition  was  to  prove?  a  threat  of  bodily  harm  to  be  carried 
into  ex(!cution  on  that  night,  and  at  his  own  house,  where  tho 
dilliculty  occurred.  AVhih;  this  was  not  competent  as  evidence 
of  motive,  it  was  admissible  to  show  temper.  Wo  conclude 
that  tho  ai)pellants  are  ontitled  to  a  venire  dc  novo. 


TlIK  QlKKN  V.  "WAt'DBY. 

(2  Q.  B.  D.,  1895,  482.) 

AiniN'o  AND  AnrTTiNO  :    Jmlictmctd  for  frioit  'oiin  ivo\nnli»g— Conviction 
of  jn'iiuijxil  fur  uulmrfol  iconiidiiig. 

Upon  tlio  tiiiil  of  .an  indictini'iit  nRiiiiist  two  prisont-rs  charging  ono  with 
fi'loniuusly  wounding  with  intt-nt  to  do  grievous  Iwilily  liarni,  tind  the 
otlicr  with  aiding  and  al)t'tting  in  th«!  coniniinsion  of  tho  tVlony,  if  tlie 
principal  hoconvicted  of  the  niisdtMnoanour  of  luilawfully  woiniiling, 
the  second  prisoner  may  bo  convicted  of  aiding  and  abetting  liini. 


'1 


ill! 


24: 


AMERICAN  CELMLNAL  KEPORTS. 


Case  stated  by  Lawrknoe,  J. 

John  AYauclby  and  William  Waudby  were  tried  upon  an  in- 
dictment wnich  charged  John  Waudby  with  feloniously,  un- 
lawfully and  maliciously  shooting  at  William  Featherstone 
with  intent  to  do  him  grievous  bodily  harm,  and  AVilliam 
Waudby  with  feloniously  aiding,  abetting  and  assisting  John 
AVaudby  to  commit  the  said  felony.  A  second  count  charged 
John  Waudby  with  feloniously,  unlawfully  and  maliciously 
wounding  William  Featherstone  with  inten.  to  do  him  griev- 
ous bodily  harm,  and  AVilliam  Waudby  with  feloniously  aid- 
ing, abetting  and  assisting. 

The  jury  found  John  Waudby  guilty  of  unlawfully  wound- 
ing, and  William  Waudby  guilty  of  aiding  and  abetting.  It 
was  objected  on  behalf  of  Williani  Waudby  that  as  he  was  aid- 
ino-and  abetting  a  misdemeanour,  he  was  entitled  to  beacfjuitted 
on  the  said  indictment.  The  learned  judge  overruled  the  ob- 
jection and  released  William  AVaudby  on  recognizances  to 
come  up  for  judgment  when  called  u])on.  The  question  for 
the  court  was  whether  the  learned  judge  was  right  in  so 
holding. 

No  counsel  appeared  to  argue  the  case. 

Lord  RussELt,  of  Killowkn,  C.  J. :  I  am  of  opinion  tliat  the 
ruling  of  the  learned  judge  was  clearly  right.  The  charge  was 
one  of  felony,  Jo^  i  Waudby  being  charged  as  the  priiicii)al,  and 
AVilliam  Waudby  with  aiding  and  ab(;tting.  The  jury  nega- 
tived the  felony,  but  found  John  guilty  of  a  misdemeanour, 
and  William  of  aiding  and  abetting.  Where  a  person  is 
charged  with  aiding  and  abetting,  if  he  is  found  guilty'  of 
aiding  and  abetting  a  misdemeanour,  he  is  guilty  as  a  ])rincij)a], 
for  there  are  no  degrees  of  guilt  in  misdemeanour.  The  statu- 
tory authority  upon  the  point  seems  clear.  By  ii  and  15 
Vict.  c.  19,  §  5,  if  a  prisoner  is  charged  with  f(!loniously 
wounding  {lieg.  v.  Miller,  14  Cox,  350,  and  Archibidd's  Crim- 
inal Pleading,  p.  745,  21st  Ed.),  and  the  jury  are  satisfied  that 
heisgudtyof  the  actual  wounding,  but  not  of  the  felon v 
they  may  acquit  him  of  the  felony  charged,  and  convict  liiin 
of  the  misdemeanour  of  unlawfully  wounding.  And  bv  24  and 
25  Vict.  c.  94,  §  S,  a  person  aiding  or  abetting  in  the  com- 
mission of  a  misdemeanour  is  liable  to  be  tried,  indicted  and 


STATE  V.  GORIIAM. 


ii& 


])unishe(l  .as  a  principal.  Here  tlie  jury  have  nfigatived  the 
felony,  and,  there  being  no  secondary  guilt  in  misdoiueanour, 
the  prisoner  William  was  a  principal  offender,  and  was  liable 
to  be  convicted  and  punished  as  such. 

PoLr-ocK,  B.,  Grantham,  Lawkence  and  Wkigiit,  JJ.,  con- 
curred. 
Conviction  affirmed. 

1^0TE,—Pri72cipals— Aiders  and  Ahctfnrf!.—ln  Travis  v.  Com.,  90  Ky. 
77,  it  is  declared  as  the  well  settled  doctrine  of  tiie  court  that  two  or  more 
persons  indicted  as  the  actual  perpetrators  of  a  crime  may  be  convicted  as 
principals  although  some  of  them  were  merely  aiders  and  abettors,  lliomp- 
son  V.  Com.,  1  Mete.  (Ky.)  13;  Young  v.  Com.,  8  Bush,  30(5;  and  Mulligati 
r.  Com.,  84  Ky.,2'»9. 

Joint  defendants. — An  indictment  against  several  joint  defendants  la 
none  the  less  au  indictment  against  each  of  them  individually.    Id. 


State  v.  Goruam. 


(C7  Vt.  305.) 


Arson:    Prosecution  for  arson — Evidence — Confessions- 
Opinion  of  icitness. 


Instructions — 


The  voluntary  confession  of  one  accused  of  arson,  though  made  while  in 
custody,  without  counsel,  and  expecting  to  die  from  the  etfects  of 
poison,  is  admissible  against  him  on  the  trial. 

Testimony  of  a  witness  that  he  had  advised  the  prisoner  to  confess,  in- 
troduced after  the  confession  had  been  given  in  evidince— the  court 
not  being  iisked,  after  the  introduction  of  such  testimony,  to  exclude 
the  confession,  and  the  prisoner's  own  evidence  tending  to  show  that 
he  wiianot  influenced  by  the  advice — was  not  ground  for  questioning, 
on  appeal,  the  admissibility  of  the  confession. 

The  opinion  of  an  ollicer,  on  cross-examination,  as  to  wliether  certain 
facts  to  which  he  had  testified  in  chief  on  trial  of  one  he  had  arrested 
were  suspicions  circumstances,  was  •  roperly  excluded,  in  the  absence 
of  evitlence  that  he  had  acted  by  reason  of  suspicion. 

Where  one  count  in  an  indictment  charged  the  burning  of  certain  build- 
ings, and  another  count  charged  the  burning  of  such  buildings  with 
intent  to  defraud  the  insurance  company,  it  was  not  error  for  the  court 
to  state  to  the  jury  that,  if  they  found  the  accused  guilty  on  the  first 
count,  they  would  probably  find  him  guilty  on  the  second  also. 

When  undisputed  testimony  showed  that  one  accused  of  arson  had  tried 
to  sell  the  property  to  different  persons,  a  charge  reciting  that  there 


•t,fl 


Jfcs;:-;^: 


26 


AMERICAN  CRIMINAL  REPORTS. 


seemed  to  be  no  controvei-sy  that  the  prisoner,  previous  to  tlie  burning, 
was  anxious  to  dispose  of  the  property,  was  not  error. 

6.  A  charge  that  tlie  jury,  when  considering  a  confession  wliich  the  pris- 

oner admitted  liaving  niadewliile  in  jail,  and  expecting  to  die  from  the 
effect  of  poison,  but  tlie  truth  of  which  he  denied,  had  the  riglit  to  say 
wlietliLT,  under  sucli  conditions,  lie  would  liave  been  likely  to  construct 
a  false  story  litting  the  circumstances  of  the  alleged  crime,  as  shown 
by  the  undisputed  evidence,  was  not  error. 

7.  A  statement  by  the  court  to  a  jury  upon  their  being  sent  back  after  dis- 

agreement, to  further  consider  the  case,  that  the  trial  had  been  "  quite 
expensive  to  the  state,  and  the  expense  ought  not  to  bo  thrown  away," 
accompanied  by  reasons  showing  that  the  i)ris()ner's  interests  would  be 
served  by  a  determination  of  the  case,  was  not  erroneous,  as  attempting 
to  induce  au  agreement  on  account  of  the  expense  to  the  state. 

Exceptions  from  Orange  County  Court;  Ross,  Cliiof  Judge. 
W.  j\I.  Gorhani  was  convicted  of  arson,  and  excepts.     Af- 
firmed. 

B.  If.  Tlarrcij  and  J.  K.  Darling,  for  respondent. 
Geo.  L.  aioioe,  State's  Attorney,  for  the  State. 

EowELL,  J.  Tlie  prisoner's  confession  to  Mrs.  Parisli  was 
made  wlien  he  was  shaclcled  and  in  custody,  without  counsel, 
and  expecting  to  die  from  the  effects  of  poison  taken  after  his 
arrest.  Testimony  was  introduced  by  both  sides  on  the  pre- 
liminary  inquiry  whether  the  confession  was  voluntary,  or 
whether  Islvs.  Parish  held  out  inducements  to  the  i)risonor, 
and  thereby  obtained  it.  The  court  found  that  the  confession 
was  made  of  the  prisoner's  own  motion,  without  any  induce- 
ment, and  admitted  it  in  evidence.  The  prisoner  excepted  to 
its  admission,  and  especially  because  it  was  made  when  he  Avas 
without  counsel,  and  also  excepted  to  the  court's  deterniinin<r 
from  the  testimony  whether  it  was  voluntary  or  ol)tained  bv 
inducements,  and  to  be  admitted  or  rejected  accordingly. 

It  will  i)e  seen  from  the  cases  cited  in  the  note  to  Daniels  v. 
State,  G  Am.  St.  Rep.  213,  and  from  State  v.  Patterson,  73  Mo.' 
695, 707,  and  Jachon  d  Dean  v.  State,  60  Ala.  249,  that  none  of 
the  circumstances  in  which  the  confession  was  made,  it  beincr 
voluntary,  rendered  it  inadmissible.  In  the  case  last  cited  con"- 
fessions  were  admitted  that  were  made  while  the  accused  'were 
m  prison,  to  an  officer  in  authority,  in  the  absence  of  friends 
and  counsel,  It  appearing  that  no  threats  nor  promises  were 
made.    There  are  some  cases  to  the  contrarv,  but  we  are  not 


STATE  V.  GORHAM. 


27 


inclined  to  follow  them,  as  we  ref^ard  them  opposed  to  the 
weight  of  authority  and  to  the  reason  of  the  thing.  Jlut  of 
course  the  circumstances  in  which  a  confession  is  made  are 
always  to  be  considered  in  determining  its  weight  as  evidence, 
although  they  do  not  make  it  incompetent  testimony. 

It  is  for  the  trial  court  and  not  for  the  jury  to  say  whether 
a  confession  is  admissible  or  not;  and  if  the  testimony  on  that 
preliminary  inquiry  is  conflicting,  the  decision  of  that  court  is 
linal;  but  if  not  conflicting,  its  decision  admitting  the  confes- 
sion is  revisable  here.  This  is  not  denied,  but  it  is  strenuously 
chiimed  that  this  c;ise  comes  within  the  latter  pai't  of  tliis  rule, 
for  that  the  undisputed  testimony  of  the  witness  Hyzer  shows 
that  he  had  a  talk  with  the  prisoner  just  before  he  confessed 
to  Mrs.  Parish,  wherein  he  told  the  ])risoner  that,  if  ho  did  it, 
it  would  be  very  much  better  for  him  to  nuike  a  clean  breast 
of  it.  This  point  was  argued  by  both  sides  as  though  Ilyzer 
testified  on  the  preliminary  I.iquiry,  whereas  the  fact  is,  as 
shown  by  the  testimony,  that  he  did  not  testify  on  such  in- 
quiry, nor  testify  at  all  until  he  was  called  by  the  prisoner 
when  putting  in  his  testimony  on  the  main  case,  and  the  pris- 
oner's testimony  <l()es  not  show  that  he  claimed  to  have  been 
inlluonccd  in  the  least  by  what  Ilyzer  said  to  him.  Jiesides, 
it  does  not  appear  that  the  court  was  asked  when  llyzer's 
testimony  came  in  to  then  exclude  the  confession,  nor  to  take 
any  other  action  in  view  of  his  testimony.  It  appears,  there- 
fore, that  the  matter  of  llyzer's  testimony  on  this  point  atl'ords 
no  ground  for  the  argument  based  upon  it. 

On  cross-examination  of  the  otficer  who  arrested  the  pris- 
oner antl  who  hoi)ed  for  the  rewards  that  had  been  oflei-ed, 
the  prisoner's  counsel  were  not  permitted  to  ask  the  witness 
whether  he  thought  certain  things  to  which  he  had  testilied, 
mostly  in  chief,  were  suspicious  circumstances.  It  does  not 
appear  that  the  witness  iiad  testified  to  having  had  his  suspi- 
cions aroused,  nor  to  having  done  an3'thing  by  reason  of  his 
suspicions,  nor  that  he  characterized  as  suspicious  anything  to 
which  he  had  testified,  but  rather  the  contrary  appeal's.  The 
matter  falls,  therefore,  within  the  rule  that  a  witness  is  not  to 
give  his  opinion,  nor  to  characterize  his  testimony,  because  it 
is  irrelevant. 

The  court  told  the  jury  that  if  one  purposely  burns  liis  own 
buildings  or  the  buildings  of  another,  designing  it  to  be  shown 


hm 


m 


'cV/^ 


28 


AMERICAN  CRIMINAL  REPORTS. 


to  be  an  accidental  fire  and  the  insurer  made  to  pay  the  loss, 
he  intends  to  defraud  the  insurer.  It  then  went  on  to  say 
that  if  they  found  the  prisoner  guilty  under  tlie  first  count, 
which  was  for  burning  the  barn  and  outbuildings,  they  would 
probably  be  pretty  likely  to  find  him  guilty  under  the  fourth 
count  also,  which  was  for  burning  said  buildings  with  intent 
to  defraud  the  insurance  company.  To  this  last  statement 
the  prisoner  excepted,  but  it  was  not  eri-or.  It  can  scarcely 
be  conceived  that  the  jury  would  not  do  that,  but  it  was  left 
wholly  to  them  to  say  Avhether  they  would  or  not. 

The  testimony  tended  to  show  tiiat  the  ])risoner  had  tried 
to  sell  the  farm  and  jiersonal  property  to  two  or  more  persons, 
and  he  admitted  on  the  stand  that  he  had  tried  to  sell  it  to 
two  of  those  persons.  The  court  told  the  jury  that  there 
seemed  to  be  no  controversy  but  tiiat  the  ])risoner,  at  the 
time  in  question,  was  anxious  to  dispose  of  the  ])roperty,  to 
which  he  excepted.  AVHiile  the  court  should  not  in  its  charge 
assump  :  s  true,  matters  that  are  in  disi)ute,  yet  it  may  assume 
as  true  matters  that  are  not  in  dispute,  or  matters  that  were 
at  first  in  dispute,  but  in  the  course  of  the  trial  have  come 
not  to  be  in  dispute,  but  to  be  tacitly  or  otherwise  treated 
as  true  by  both  sides,  and  the  case  thereafter  tried  on  that 
theory.  AVlien  a  change  of  this  kind  takes  place,  as  often 
happens,  the  court  may  treat  the  case,  in  this  regard  as  the 
parties  have  treated  it,  and  charge  accordingly.  It  does  not 
appear  that  the  court  did  more  than  that  in  this  case.  In- 
deed, it  is  to  be  assumed  that  what  the  court  said  in  this  re- 
gard was  true,  it  not  appearing  to  be  untrue.  The  testimony 
is  not  made  a  part  of  the  exceptions  on  this  point. 

The  prisoner  admitted  on  the  stand  that  he  made  the  con- 
fession testified  to  by  the  witnesses  on  the  part  of  the  state,  but 
said  it  was  all  false.  At  the  time  he  made  the  confession 
there  had  been  no  examination  before  the  magistrate,  and  it 
did  not  appear  that  he  knew  what  evidence  the  state  claimed 
to  have  against  him.  The  court  told  the  jur}'  that  when  con- 
sidering the  confession  they  had  a  right  to  say  whether  it  was 
probable  that  at  that  time  the  prisoner,  in  his  condition  and 
prospects,  would  have  gotten  up  and  concocted  a  false  story 
that  would  fit  right  into  all  the  surrounding  cii'cumstances,  as 
this  one  did— whether  he  could  in  that  short  time  have  con- 
cocted this  story,  and  had  it  tit  in  to  the  buruinff,  to  Learin"- 


II 


STATE  V.  GORIIAM. 


29 


the  team  go  by,  going  to  bed  and  staying  till  his  sister  called 
iiim  up,  spilling  the  kerosene  oil,  carrying  off  his  clothes, 
making  tracks,  and  all  those  things,  just  what  they  found 
he  did  say,  and  yet  it  all  be  false.  The  prisoner  ex- 
cepted to  this,  and  says  that  the  "  surrounding  circumstances  " 
were  neither  admitted  nor  agreed  upon,  and  that,  therefore, 
the  court  could  not  sa}'^  that  tlie  confession  fitted  into  them. 
This  criticism  might  have  force  if  it  a])peared  that  the  circum- 
stances alluded  to  by  the  court  were  not  practically  undis- 
puted; but,  as  it  does  not  thus  appear,  it  is  without  force. 

The  jury,  after  being  out  all  night,  came  in,  disagreed, 
but  wanted  no  further  instructions.  The  court,  however,  said 
to  them,  that  they  had  some  occasion  to  inquire  whether  there 
mifht  not  possibly  have  been  some  other  party  around  there, 
but  that  that  was  not  the  question  to  be  tried;  that  the  only 
question  to  be  tried  was,  whether  the  fire  was  a  criminal  fire 
and  the  prisoner  the  criminal;  that  the  other  question  that 
there  was  some  suggestion  of  by  some  of  the  tcstimon}-,  had 
not  been  investigated,  and  could  not  be  investigated  except 
to  say  that  it  showed  that  it  might  be  probable  or  possible 
that  it  was  a  criminal  fire  and  some  one  else  had  to  do  with  it. 

If  this  amounted  to  charging  the  element  of  another's  guilt 
out  of  the  case,  or  if  there  is  fair  ground  for  thinking  that  the 
jury  may  have  so  understood  it,  it  would  be  error.  Jjut  it  is 
considered  by  a  majority  of  the  court  tiiat  it  did  not  amount 
to  that,  and  that  there  is  no  fair  ground  for  saying  that  the 
jurv  ma}"^  have  thought  it  did.  It  is  to  be  ])resumed  that 
proper  instructions  had  been  given  on  this  point  before;  and 
til  is  additional  instruction  put  the  matter  in  its  true  light 
when  it  said  tluit  the  scope  of  that  inquiry  was,  if  the  tire  was 
criminal,  whether  some  one  else  had  to  do  with  it.  It  was  not 
necessary  for  the  jury  to  l)e  told  in  order  to  know  that  the 
more  the  testimony  showed  against  another  the  less  it  showed 
airainst  the  prisoner;  but,  if  it  was  necessary  it  is  to  be  pre- 
sumed that  they  had  already  been  told  that.  There  was  no 
error  here. 

The  court  returned  the  jury  for  further  consideration,  and 
in  doing  so  said  to  them,  lest  tliey  should  think  its  action  un- 
reasonable, that  the  trial  had  occupied  five  days;  that  the  tes- 
timony was  lengthy,  covered  a  good  many  points,  had  been 
fully  discussed,  and  could  be  looked  at  in  many  diflerent  lights; 


ihi 


:•  l||i 


!:|i| 


30 


AMERICAN  CRIMINAL  REPORTS. 


that  it  was  important  to  the  prisoner  and  to  the  state  tliat  the 
case  should  be  determined;  that  it  had  been  quite  expensive 
to  the  state,  and  that  that  expense  ought  not  to  be  thrown 
away  if  it  could  be  avoided;  that  the  court  had  to  have  tlieso 
considerations  in  mind  when  a  jury  asked  to  be  discliarged, 
and  that  the  court  thought  the  jury  shoukl  have  them  in 
mind.  It  is  claimed  that  by  this  i he  court  injected  into  the 
case  the  element  of  expense  to  tt  .^  as  a  proper  matter  to 

influence  an  agreement,  But  ■  'o  jt  so  regard  it.  It  is 
manifest  that  the  court  i'ltended  merely  to  reconcile  the  jury 
to  a  return,  and  to  quic.cen  tht  u  to  a  renewed  effort  to  make 
true  deliverance  between  the  state  ai. '  the  ^  ;  mer  according 
to  the  evidence  and  the  laws,  as  they  had  swam  io  do;  and 
there  is  no  fair  ground  for  supposing  that  they  understood 
it  otherwise,  as  a  majority  think. 

There  is  no  error  in  the  proceedings,  and  the  prisoner  takes 
nothing  by  his  exceptions. 

'^OTE.—Instnietions  7nust  be  based  on  evidence.— Jn  the  trial  of  a  crim- 
inal case  before  a  jury,  the  jury  are  the  sole  judges  of  what  facts  have 
been  proven  by  the  evidence,  and  the  court  hasnoriglit,  in  the  instructions, 
to  assume  that  certain  facts  have  been  proven.  Ellis  v.  People,  158  III. 
844.  Whether  the  defendant  had  made  threats  to  bum  the  property,  or 
conceal  bed  clothing,  oil  cans,  dresses,  or  any  otlier  article,  was  a  question 
of  fact,  for  the  jury  to  determine  from  the  evidence.  There  was  a  conflict 
in  the  evidence  in  regard  to  those  matters  which  the  court  directed  tlie  jury 
were  proven,  and  if  the  jury  had  been  left  free  to  pass  upon  those  questions 
of  fact  they  might  have  found  in  favor  of  the  defendant,  and  such  finding, 
no  doubt,  would  have  resulted  in  a  verdict  for  the  defendant.  But,  wljetlier 
that  would  have  been  the  result  or  not,  it  was  the  riglit  of  the  defendant  to 
have  the  jury  determine  for  themselves  the  facts  wliich  the  evidence  estab- 
lislied,  and  it  is  plain  that  the  instruction  in  question  took  that  right  away 
from  the  jury.    Id. 

It  is  error  for  the  court  to  assume  the  existence  of  an  important  fact 
which  is  not  conceded  or  established  by  uncontradicted  proof.  State  v. 
Lewis,  56  Kan.  374. 

Offense  agaimt  habitation.— Arson  is  an  offense  against  the  habitation, 
and  affects  possession  rather  than  property.  People  v.  Fairchild,  48  Midi. 
31;  Woodruff  V.  People,  63  N.  Y.  117;  Regina  v.  Truman,  8  Car.  «fe  P.  727. 

Under  section  54  of  the  Criminal  Code,  it  was  erroneous,  over  proper 
objections,  to  try  a  defendant  upon  the  charge  of  burning  a  schoolliouse, 
joined  with  one  for  causing  such  burning  to  be  done  by  another  person 
Wendell  v.  State,  46  Neb.  833. 

Wliere,  in  a  criminal  case,  it  is  shown  that  a  certain  letter  is  in  defend- 
ant's handwriting,  and  that  it  was  received  through  the  mail  by  the  person 
to  whom  it  was  written,  it  is  not  error  to  admit  the  envelope,  though  the 


JORDAN  V.  STATE. 


11 


adilross  is  not  shown  to  be  in  defindant's  handwriting.    State  v.  Ilarccy, 
lai  xMo.  8;5i>. 

In  a  criminal  case  it  is  error  to  give  an  instruction  wiiich  casts  on  de- 
fendant tlio  burden  of  establisliing  an  alibi.    Id, 

]yitin'tis. — A  witness  in  a  criminal  Ciuse,  who  testifies  that  ho  has  seen 
defendant  write  his  name,  is  acquainted  with  his  handwriting,  and  has  re- 
ceived letters  from  him,  is  competent  to  give  his  opinion  as  to  whether  a 
letter  is  in  defendant's  handwriting.     Id. 

It  is  not  necessary  that  a  witness  .as  to  defendant's  handv/riting  slionld 
state  positively  that  a  certain  letter  is  in  defendant's  handwriting,  to  entitle 
it  to  go  to  the  jury;  but  it  is  sufficient  if  witness  state  that  he  is  accjuninted 
witli  his  handwriting,  and  that,  in  his  opinion,  the  letter  was  written  by 
him.    Id. 

On  a  trial  for  arson,  it  was  not  error  to  permit  a  witness  to  tcstifj'  that, 
a  short  time  before  the  burning,  ilcfendant  was  complaining  tliat  the  pros- 
ecutor claimed  too  much  rent  of  him:  that  the  witness  asked  him  what  he 
was  going  to  do  about  it,  and  defendant  rej)lied,  "I'll  burn  it."  Slate  v. 
Lytic,  117  N.C.  7!)J). 

Crosfi-c.viDnlnatiim. — Wiiere,  in  a  case  of  arson,  the  defense  is  alibi,  and 
defendant,  as  a  witness,  simply  states  that  he  was  not  present  at  the  time 
and  place  of  the  fire,  it  is  proper  cross-examination  to  ask  him  wliere  he 
was  at  the  time  the  property  was  burned.     Slate  v.  Harvey,  131  Mo.  JJoO. 

Alibi. — In  a  criminal  case,  wliere  the  defense  was  an  aliin,  it  was  error 
to  refuse  to  charge  that  the  state  must  show  the  presence  of  defendant  at 
the  time  and  place  of  the  alleged  comniission  of  the  crime,  and  if  the  jury 
believe  defendant's  evidence  sufficient  to  raise  a  reasonable  doubt,  or  if  tJio 
state's  evidence  is  so  defective  as  to  raise  a  reasonable  doubt,  or  if,  taking 
the  whole  evidence  on  the  qu(!Htion  of  alibi,  there  is  a  reasonable  doubt  of 
defendant's  guilt,  they  should  acijuit.    Slate  v.  Harvey,  131  Mo.  339. 


JoKDAX  V.  State. 

(142  Ind.  422.) 

Arson:    Indictment— Allegation  of  ot(-ner.<ihip— Witness— Ilmhand  and 
wife — Privileged  couimunieations. 


1.  An  indictment  for  burning  a  certain   "flouring,  grist  and  com  mill- 

house  "  sufficiently  alleges  the  burning  of  a  building. 

2.  An  indictment  for  arson  alleging  the  building  burned  as  the  house  "  of" 

a  certain  person  sufficiently  alleges  that  it  was  the  property  of  such 
person. 

3.  The  Civil  Code  of  Indiana  provides  that  husband  and  wife  are  incompe- 

tent to  testify  as  to  communications  made  to  each  other.  The  crim- 
inal procedure  act  provides  that  the  rules  of  evidence  as  prescribed  in 
civil  cases  shall  apply  in  criminal  cases,  except  as  further  provided, 
and  further  provides  that  the  "  paity  injured  by  the  offense  committed" 


I; 


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if;i,;'s-: 


33  AMERICAN  CRIMINAL  REPORTS. 

shall  be  a  competent  witness.  Hvhl,  in  a  proserution  for  arson  njrninst 
the  wire,  t))e  Imsbaml,  as  the  p.arty  injured,  bein^  a  part  owner  of  the 
property  burned,  may  testify  against  iiis  wile  aa  to  commu:iicati(;nH 
between  them. 

Appeal  from  Circuit  Court,  Knox  County. 
Louise  Jordan  was  convicted  of  arson,  and  appeals.     Af- 
firmed. 

//.  Bvrne^  and  /.  S.  Pritc/ieit,  for  appellant. 

Wm.  A.  Jicic/iaiii,  Attorney  General,  Jo/m  T.  Gondman., 
Prosecuting  Attorney,  W.  A.  CuUv])  and  6'.  B.  Jxtnaluyet', 
for  State. 

IIackxet,  J.    By  indictment  the   appellant  was  charfrcd 
witii    having   "unlawfully,    feloniously,  wilfully  and    mali- 
ciously set  lire  to  and  burned  a  certain  flouring,  grist  and  coin 
mill  house  of  Samuel  A.  Joidan,  Aaron  G.  Jordan  and  Win- 
field  S.  Lane,"  etc.    A  motion  to  quash  the  indictment  was 
overruled,  and  upon  a  trial  by  jury,  the  appellant  was   fouiul 
guilty  as  charged,    Theoidy  assigned  errors  of  the  trial  court 
are  in  overruling  the  motion  to  quash  the  indictment  and  in 
overruling  a  motion  for  a  new  trial.    It  is  contended  that  the 
indictment  was  insufficient  in  failing  to  charge  the  burning  of 
a  building,  and  in  failing  to  charge  that  such  building  w;i.s  the 
property  of  another.    The  statute  defining  the  crime  of  arson 
provides  that  "Whoever  wilfully  and  maliciously  burns,  or  at- 
tempts to  burn,  any  dwelling  house  or  other  building    *     *     =* 
being  the  property  of  another,    *    *    *    is  guilty  of  arson." 
"  Mill-house"  has  no  meaning  r.ot  implying  a  building,     V,y 
the  ordinary  use  of  the  word  "  house,"  it  is  understood  to 
mean  a.  building,  and  when  taken  in  connection  with  the  words 
"  flouring,"  "  grist,"  "mill,"  etc.,  it  is  capable  of  but  one  mean- 
ing.   This  has  been  very  clearly  decided  in  a  case  similar  to 
the  present.    ^QaFordv.  State,  112  Ind.  373. 

The  charge  that  it  was  the  "  mill-house  of  Samuel  A.  Jor- 
dan," etc.,  sufficiently  charged  that  such  mill-house  was  the 
property  of  tliose  named.  This  exact  question  was  decided 
against  the  views  of  the  appellant  in  Wolf  v.  State,  53  Ind,  30. 
The  two  objections  to  the  indictment  thus  stated  could  not 
have  been  passed  upon  in  any  other  manner  in  view  of  the 
statutory  provisions  that  "  The  words  used  in  an  indictment 


JORDAN  V.  STATE. 


33 


*  *  *  must  be  construed,  in  their  usual  acceptation,  in 
common  language,"  (U  )V.  St.  189-t,  §  1805,)  and  that  an  in- 
dictment is  sufficient  if  "  the  olfense  charged  is  stated  with 
such  a  degree  of  certainty  that  the  court  may  ])ronounce 
judgment,  upon  a  conviction,  according  to  the  right  of  the 
case  "(Rev.  St.  1891,  §  1824). 

The  next  question,  arising  upon  the  motion  for  a  new  trial, 
is  the  alleged  error  of  the  court  in  permitting  Aaron  G.  Jor- 
dan, the  husband  of  the  ap|>ellant,  to  testify  as  ^  witness  on 
behalf  of  the  appellee  that,  prior  to  the  burning  of  the  mill, 
the  appellant  had  declared  to  him  her  intention  to  burn  the 
mill,  and  that  after  its  destruction  she  had  told  him  that  she 
did  burn  it.  The  objections  made  at  the  trial  and  repeated 
in  this  court  are  that  such  communications  f  om  the  wife  to 
the  husband  are  privileged,  and  that  he  was,  therefore,  an 
incompetent  witness  as  to  such  communications. 

By  the  Civil  Code  (Rev.  St.  1894,  §§  504, 505),  all  persons, 
except  those  specifically  exempted,  are  made  competent  wit- 
nesses in  civil  actions.  Of  those  specifically  declared  incom- 
petent are  "  husband  and  wife,  as  to  communications  made 
to  each  other."  By  the  criminal  procedure  act.  Rev.  St.  1894, 
g§  1S05-18G7,  it  is  provided  that  "The  rules  of  evidence  pre- 
scribed in  civil  cases  and  concerning  the  competency  of  Avit- 
nesses  shall  govern  in  criminal  cases,  except  as  otherwise 
provided  in  this  act."  It  is  further  provided  that "  The  follow- 
ing persons  shall  be  competent  witnesses  : 

*  *  *  Second.  The  party  injured  by  the  offense  com- 
mitted." There  can  be  little  doubt,  we  think,  that  the  effect 
of  these  various  provisions  is  that,  with  reference  to  criminal 
procedure,  the  "  Husband  and  wife,  as  to  communications  made 
to  each  other,"  are  incompetent  witnesses  except  that  if  either 
is  "  The  party  injured  by  the  offense  committed  "  he  or  she  is 
a  competent  witness.  Such  was  the  holding  of  this  court  in 
Doolittle  V.  State,  93  Ind.  272.  Appellant's  learned  counsel  con- 
cede that  this  is  the  effect  of  these  provisions,  but  they  seek  to 
limit  the  application  of  the  phrase, "  The  party  injured  by  the 
offense  committed,"  so  far  as  it  includes  husband  and  wife,  to 
such  injuries  as  result  from  the  personal  violence  of  either  upon 
the  other.  This  insistence  is  upon  the  theory  that  at  common 
)  I  v  the  wife  was  competent  to  testify  against  her  husband  and 
the  husband  against  the  wife  only  in  cases  involving  the  per- 
8 


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I 
i. 

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31  AMERICAN  CRIMINAL  REPORTS. 

sonal  safety  or  liberty  of  either;  that  the  rule  of  the  common 
law  should  be  so  sacredly  upheld,  in  the  interest  of  the  mar- 
riage relation,  that  a  legislative  intention  to  abri<lge  that  rule 
must  be  clearlvand  explicitly  stated  before  the  courts  will 
give  it  recognition.  This  intention,  it  is  urged,  is  not  appar- 
ent from  the°statutory  provisions  above  quoted.  This  position 
was  denied  as  early  as  the  case  of  Ilutchason  v.  State,  67  Ind. 
419  where  the  wife  was  permitted  to  testify  to  the  acts  of  the 
husband  in  the  commission  of  the  arson  there  charged.  It  was 
held  that  "  The  legislative  intent  is  so  apparent,  and  the  lan- 
.  guage  of  the  statute  so  explicit,  that  no  room  exists  for  con- 
struction or  doubt,"  and  that  such  intent  was  to  make  the 
wifecorapetent  as  to  everything  excepting  "communications." 

In  Doolittle  v.  State,  supra,  it  was  expressly  held  that  the 
phrase  "  The  party  injured  by  the  offense  committed,"  together 
with  the  context,  created  an  exception  to  the  rule  of  incompe- 
tency as  to  "  communications."  So  we  find  that  the  adjudged 
meaning  of  our  statutes  is  to  admit  either  the  husband  or  the 
wife  to  testify  in  criminal  prosecutions  against  the  other  when 
he  or  she  is  "  the  party  injured  by  the  offense  committed," 
whether  the  evidence  involves  communications  or  acts  which 
are  part  of  the  res  gestas. 

It  is  further  claimed  by  appellant's  counsel  that  the  husband 
was  not  "the  party  injured  by  the  offense  committed,"  since 
the  offense  was  in  destroying  property,  and  that,  too,  in  which 
he  was  but  an  owner  in  common  with  others.  To  this  pro])o- 
sition  is  cited  Bassett  v.  United  States,  137  U.  S.  496,  a  case 
where  the  husband  was  prosecuted  for  bigamy,  and  it  was 
held  that,  under  the  statute  of  Utah,  the  wife  could  not  testify 
to  the  husband's  confessions  of  guilt  made  to  her,  for  the 
reason  that,  while  the  offense  was  one  of  disloyalty  to  the 
marital  relation,  and  a  deep  humiliation  to  the  wife,  it  was, 
nevertheless,  but  a  crime  against  the  relation,  and  not  against 
the  wife.  There  the  statute,  considered  as  excluding  husband 
and  wife  as  witnesses,  contained  an  exception  as  "  to  criminal 
action,  or  proceeding,  for  a  crime  committed  by  one  against 
the  other."  This  provision,  however,  was  in  the  civil  code, 
and,  as  will  be  observed,  was  negative  in  form.  There  the 
criminal  code  contained  the  following  provision :  "  Witnesses, 
competent  in  civil  actions,  are  competent  also  in  criminal  pro- 
ceedings.   Except  with  the  consent  of  both,  or  in  cases  of 


JORDAN  V.  STATE. 


35 


criminal  violence  upon  one  by  the  other,  neither  husband  nor 
wife  are  competent  witnesses  for  or  against  each  other,  in  a 
criminal  action  or  proceeding,  to  which  one  or  both  are  par- 
ties." Utah,  2  R.  S.,  188S,  p.  743.  It  will  thus  be  seen  that 
the  negative  exception  of  the  civil  code  was  construed  as 
granting  no  right  to  the  wife  to  testify  in  a  criminal  prosecu- 
tion against  her  husband,  when  the  criminal  code  expressly 
excluded  her  as  such  witness.  So  far,  therefore,  from  consti- 
tuting an  autijority  in  favor  of  appellant's  contention,  we 
think  it  has  no  bearing  upon  the  question.  Our  statute  very 
plainly  makes  the  husband  or  wife  a  competent  witness  where 
he  or  she  is  "  the  party  injured  by  the  offense  committed." 
The  word  "  injured,"  as  employed,  must  be  construed  in  its 
plain,  ordinary  and  usual  sense.  R.  S.,  1894,  §  240.  It  is  not 
to  be  limited  to  personal  or  physical  injuries,  but  in  its  plain, 
ordinary  and  usual  sense,  it  signifies:  the  privation  of  a  legal 
right;  a  wrong;  a  tort.  And.  Law  Diet.  "'Injury'  means, 
in  general,  any  wrong  or  damage  done  to  a  man's  person, 
rights,  reputation  or  goods."  11  Am.  &  Eng.  Enc.  Law,  p.  1, 
note  1.  In  /  ^ople  v.  Howard,  17  Cal.  664,  one  of  the  statutes 
in  review  provided  that  "the  party  or  parties  injured  shall,  in 
all  cases,  be  competent  witnesses,"  and  the  court,  speaking 
by  Mr.  Justice  Field,  said :  " By  'injured  party'  is  meant  the 
person  who  is  the  immediate  and  direct  sufferer  from  the 
offense  committed."  The  husband  was  an  injured  party,  and 
to  hold  that  his  competency  must  turn  upon  and  be  defeated 
by  the  fact  that  others  were  likewise  injured  by  the  arson, 
would  be  unduly  technical  and  narrow. 

Objection  is  further  made  that  the  evidence  did  not  support 
tie  verdict.  In  this,  we  think,  counsel  are  in  error.  There 
was  evidence  reasonably  supporting  the  verdict  in  every  ma- 
terial element  of  the  charge. 

Finding  no  error  in  the  judgment  of  the  Circuit  Court,  the 
same  is  affirmed. 

Note. — Special  or  qualified  ownership  of  property  burned. — Through 
a  statute  of  Massachusetts,  under  which  a  bridge  was  purchased  and  laid 
out  as  a  public  highway,  and  the  care  thereof  given  to  certain  cities,  a  county 
wliich  pays  one-half  the  costs  and  expenses  for  its  maintenance  has  such  a 
special  property  therein  as  would  support  an  allegation  of  ownership  in  an 
indictment  for  the  burning  of  the  bridge.  Com.  v.  Fitzgerald,  164  Mass. 
587. 


I  - 


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f 


i'lii  il 


86 


AMERICAN  CKIMINAL  UEI'OUTS. 


DiflcusainK  the  distinction  between  the  right  of  property  and  the  cnsoiiient 
over  the  highway,  tlie  court  say: 

"  But  the  easement  is  one  thing  and  tlie  structure  and  materials  compoHing 
a  bridge  or  way  are  another  thing.    They  are  analogouH  to  erections  on  the 
land  of  another  under  a  right  secured  for  tiiat  purpose  by  the  party  erecting 
them.    As  long  as  the  ways  exist,  they  form  a  part  of  them,  and  are  sub- 
j^ct  to  use  by  the  public;  but.  when  the  ways  are  discontmued  or  aban- 
doned, the  structures  and  materials  entering  and  forming  a  part  of  them 
r.fvert,  not  to  the  public  or  to  the  landowner,  but  to  the  counties,  cities  and 
towns'that  furnished  them  and  paid  for  them,  and  which,  therefore,  while 
they  continued  to  be  jsed  by  tiie  public,  have  a  qualiHed  or  special  j)rop- 
erty  in  them.     Totvn  of  Troy  v.  Cheshire  R.  Co.,  2H  N.  H.  83;  liuMiiiun  v. 
State,  110  N.  Y.  233;  Shirk  v.  Board.  100  Ind.  M\\;  Grech/  Tp.  v.  Uonrd 
of  Com'rs  of  Saline  Co.,  26  Kan.  510;   Ilarrinon  v.  I'arhrr,  «  East.  l.')-4; 
Corporation  of  Wellington  Co.  v.  Milan,  10  C.  P.  (Prov.  Ont.)  124;  Elliott, 
Roads  &  S.  80;  Condn  v.  Cowan,  12  Ohio  St.  620;  U'ayner  v.  liailroad  Co, , 
22  Ohio  St.  503.    See  Inhabitants  of  Freedom  v.  Weed,  40  Me.  m\.    The 
bridge  in  this  case  was  laid  out  as  a  highway,  which,  strictly  speaking. 
would  constitute  it  a  county  way  (Denham  v.  Commissioners,  low  Mass. 
202);  and  to  some  extent,  no  doiibt,  the  county  commissionei-s  had  authority 
over  it  (St.  1888.  c.  313).    Whether  or  not  it  was  wholly  the  property  of  the 
county  we  need  not  consider,  since,  under  the  principles  above  stated,  it  is 
clear  that  the  county  had  a  qualified  or  special  proiierty  in  a  part  of  it,  and 
that  was  enough  to  sustain  the  indictment." 

Possession.— \i\  State  v.  Fish,  27  N.  J.  L.  824,  which  was  an  indictment 
for  arson,  charging  the  defendant  with  burning  the  property  of  another, 
the  court  held  that  the  indictment  was  not  sustained,  if  it  appears  by 
the  evidence  that  the  accused  was  in  possession  of  the  pro|>erty  under  a 
contract  to  purchase  it.  And  it  is  there  held,  that  if  a  landlord  or  rever- 
sioner sets  fire  to  his  own  house,  of  which  another  is  in  poss»>Hsion  under 
lease,  etc.,  it  is  arson,  for,  during  the  lease,  the  house  is  the  property  of  the 
tenant.  Harris's  Case,  Foster,  113;  4  Bla.  Com.  222;  Roscoi>'s  Cr.  Ev.  199. 
So  if  it  be  in  possession  of  a  copyholder,  SjKilding's  Case,  1  Rust's  P. 
C.  1025;  1  Leach's  Crown  Law,  218. 

The  principle  of  the  rule  is,  that  it  was  for  the  protection  of  the  person  in 
the  actual  and  immediate  possession  of  the  house.  The  ofTense  is 
against  the  possession  of  another.  Brecme's  Case,  1  Leach,  220;  2  East's 
P.  C.  1026;  Pedlen'8  Case,  1  Leach,  235;  1  Hale's  P.  C.  567,  note:  3 
Chitty's  Cr.  L.  1106.  And  the  court  will  not  inquire  into  the  tenure 
or  interest  which  such  person  has  in  the  house  burnt.  It  is  enough  that  it 
was  his  actual  dwelling  at  the  time.    2  J.  R.  104;  12  Verm.  93. 

Ownership— Allegation  and  proof.— The  30th  secti-'  ,  of  the  act  for  the 
punishment  of  crimes  (Nix.  Dig.  164)  is  simply  declaratory  of  the  common 
law  crime  of  arson.  It  enacts  that  if  any  person  shall  wilfully  and  mali- 
ciously bum  the  dwelling  house  of  another,  or  any  outhouse  that  is  parcel 
thereof,  he  shall  be  adjudged  guilty  of  arson.  It  is  conceded  that  the  olfense 
described  in  this  section  is,  as  in  cases  of  arson  at  common  law,  an  offense 
against  the  possession,  and  that  the  dwelling  house  of  another  means  a 
dweUing  in  the  possession  of  another;  and  that  if  a  tenant  in  possession  burn 
the  dwelling  of  his  landlord,  or  if  the  tenant  in  fee  burn  his  own  dwelling 


JORDAN  V.  STATIC. 


87 


to  defraud  a  mor'  -  or  an  InMiror,  ho  in  not  guilty  of  arHon  uiidor  tho 

stiitiitt'.     So  thv  I  ,jro|)t'rly  instructed  tli»<  jury,  and,  in  a<'<'i>rdanc'e  with 

tliut  inHtructioii,  tliu  defendant  \vutiac(|uitted  on  thu  tlrKt  count  of  tlu;  in- 
dii'tnient.    27  N.  J.  L.  '.i'M. 

In  iS'/<i/e  V.  Lyon,  13  Conn.  480.  it  Ih  held  that  to  conHtitute  the  offeuHo  of 
hurninK  a  Hho|),  under  our  Htatute,  it  nuist  l>e  alleged  and  proved,  that  tho 
building;  burned  Wits  the  property  of  another;  Hueh  property  ('onHinting 
either  of  tlu'  entire  interest,  oruuch  a  iHwsoHdion  as  ^iveH  a  special  property 
while  it  exirttH. 

VViiere  an  information  for  hurniiiK  a  shop  alleged,  in  one  count,  that  it 
wax  the  property  of  B  and  C  aw  truHteesof  D,  and  in  nnotlier,  that  it  was 
owned  by  B  and  C  jointly,  no  evidence  wliatever  wan  offered  in  8up|K)rtof 
the  former  allegation,  and  in  HUpjiort  of  th(!  latter,  the  only  evidence  was 
the  tcHtiinony  of  one  witneKS,  tliat  at  the  time  the  shop  was  burned,  he  was 
employed  at  work  therein,  by  B,  and  of  another  witness,  that  at  the  sanio 
time  the  prisoner  was  at  work  in  the  shop  in  the  employment  of  E;  it  was 
held  that  this  cidence  was  inHUllicient  to  juntily  a  conviction  of  the 
prisoner;  and  o  lict  against  him  was  set  aside,  an  a  verdict  without 

evidence.     Id. 

In  People  v.  iu„  ,  20  Cal.  70,  it  is  held  that  avenu'-nts  of  an  indictment 
for  arson  must  be  direct  and  certain  as  to  the  ownei-ship  of  the  dwelling 
house  which  the  (h-f'endant  is  accused  of  burning.  An  indictment  which 
leaves  the  questitm  of  ownership  to  rest  u|K)n  conjecture,  or  to  be  nuule 
out  by  argument,  isdenuuTable. 

The  allegation  of  the  ownerslup  of  tho  building  burned  is  a  part  of  tho  de- 
scription of  tlie  offense,  and  it  must  be  direct  that  the  building  was  the  prop- 
erty of  the  person  who  at  the  time  was  occupying  it  in  his  own  right.     Iii. 

Thus  where  the  language  of  the  indictment  in  reference  to  the  ownership 
was,  "which  said  dwelling  house  was  then  and  there  the  property  of 
one  Lemon"  and  was  then  and  there  the  dwelling  house  of  one  Chinaman, 
a  human  being  whose  real  name  is  to  the  jury  unknown,  lield,  on  demur- 
rer, that  the  indictment  was  insufficient.    /(/. 

An  indictnu'ut  for  arscm  which  contains  two  averments  as  to  tho  owner- 
ship of  the  dwelling  house,  either  of  which  without  the  other  is  good,  but 
which  are  repugnant  to  each  other,  is  denuirrable.     /(/. 

Marrii'd  womaiCa  act — Hmhand  and  wife.— In  Snyder  v.  People,.  26 
Mich.  105,  in  discussing  the  "  Married  Woman's  Act,"  Mr.  Justice  Cooley 
says :  "It  must  be  evident  from  this  summary  of  the  law  on  this  subject, 
that  if  the  husband,  living  with  his  wife,  luis  a  rightful  possession  jomtly 
with  her  of  the  dwelling  house  which  she  owns  and  they  both  occupy,  he 
can  not,  by  common  law  rules,  be  guilty  of  arson  in  burning  it.  It  remains 
to  be  seen  whether  the  statutes  have  introduced  any  changes  which  would 
affect  the  case. 

•'  It  is  said  that  the  wife  is  entitled  to  support  at  the  husband's  domicile, 
and  she  may  prevent  his  disposing  of  it.  The  statute  has  not  given  him  a 
corrt>six)n<ling  right  to  impede  or  preclude  conveyances  or  incumbrances 
by  the  wife,  but  nevertheless,  lus  long  as  they  occupy  together,  he  is  not  to 
be  considered  a.s  being  upon  the  premises  by  sufferance  merely.  He  is  there 
by  right  as  one  of  the  legal  unity  known  tt)  the  law  as  a  family,  as  having 
iniiHirtant  duties  to  perform,  and  responsibilities  to  bear  in  that  relation, 
wliich  can  only  be  properly  and  with  amplitude  performed  and  borne  while 


■* 


li/1 

•''•!} 


^KM 


88 


AMERICAN  CRIMINAL  REPORTS. 


the  legal  unity  represents  an  actuality  as  having  rights  in  consort,  and  oflf- 
spring  which  can  only  be  valuable  reciprocally  wliile  the  one  spot,  however 
owned,  shall  be  the  home  of  all;  and  in  many  ways  he  still  represents  the 
family  in  important  relations  of  society  and  government.  Some  of  the 
legislation  on  the  subject  is  exceedingly  crude;  some  of  it  has  injudiciously 
given  powers  to  the  wife  in  the  disiK)sition  of  property  which  it  has  pru- 
dently denied  to  the  husband;  but  none  of  it  makes  the  husband  a  stranger 
in  law  in  the  wife's  domicile.  The  property  is  hers  alone,  but  the  residence 
is  equally  his;  the  estate  is  in  her,  but  the  dwelling  house,  the  domua,  is 
that  of  both. 

"  If,  therefore,  the  husband  shall  be  guilty  of  the  great  wrong  to  his  wife 
and  family,  of  setting  fire  to  the  house  they  inhabit,  he  is  no  more  guilty 
of  arson  in  so  doing  than  the  wife  was  at  common  law  for  a  like  wrong  to 
the  dwelling  house  of  the  husband.  The  case  is  a  very  proper  one  for  a 
penal  statute,  but  none  has  yet  been  enacted  to  meet  it.  The  house,  in  legal 
contemplation,  as  regards  the  oflfense  under  consideration,  is  the  dwelling 
house  of  the  husband  himself." 


State  t.  Ligutset  et  al. 
(43  S.  C.  114.) 

Assault:    What  constitutes— Instructions— Trespasser. 

1.  Pointing  a  gun  at  another  within  shooting  distance  may  constitute  an 
assault. 

8.  Error  in  a  charge  is  cured  by  recalling  the  jury  and  correcting  the  de- 
fect. 

a  One  is  not  justified  in  using  force  to  expel  a  mere  trespasser  on  his 
land. 

Appeal  from  General  Sessions,  Circuit  Court  of  Barnwell 
County;  D.  A.  Townsend,  Judge. 

M.  M.  Lightsey  and  M.  S.  Lightsey  were  convicted  of 
aggravated  assault,  and  appeal.    Affirmed. 

Davis  tfe  Holman,  for  appellants. 
Solicitor  Bellinger,  for  the  State. 

Gary,  J.  The  above-named  defendants  were  indicted  for 
an  assault  with  intent  to  kill.  They  were  tried  at  the  summer 
terra  (1891)  of  the  court  of  general  sessions  for  Barnwell 
County,  before  his  honor,  Judge  D.  A.  Townsend.  Under  the 
charge  of  the  presiding  judge  the  jury  found  them  euilty  of 
an  assault  of  a  high  and  aggravated  nature  on  the  second  count 


STATE  V.  LIGHTSEY  ET  AL. 


39 


in  the  indictment,  and  they  were  sentenced  to  pay  a  fine  or  be 
imprisoned  in  the  state  penitentiary.  The  testimony  is  not 
set  out  in  tlie  case,  nor  is  there  any  statement  of  the  facts  upon 
which  they  were  convicted.  The  charge  of  his  honor,  the 
presiding  judge,  can  not  properly  be  construed  except  in  the 
light  of  the  testimony  in  tlie  case,  or  upon  an  agreed  state- 
ment of  the  facts.  "Where  neither  the  testimony  nor  an  agreed 
statement  of  the  facts  appears  in  the  case,  the  exceptions  only 
present  abstract  questions  of  law.  But,  waiving  such  objec- 
tions, the  exceptions  can  not  be  sustained. 

The  first  exception  is  as  follows :  "  J3ecause  his  honor  erred 
in  charging  the  jury  that  an  assault  may  be  committed  by 
simply  pointing  a  gun  at  another."  The  charge  of  the  pre- 
siding judge  on  this  point  was  as  follows :  "  A  simple  assault 
is  an  attempt  to  do  bodily  harm,  but  fails — falls  short  of  doing 
the  harm,  touching  the  body,  doing  the  battery.  For  instance, 
the  example  usually  used  is  striking  at  another  within  striking 
distance,  but  not  striking  him;  pointing  a  gun  at  another 
within  shooting  distance,  but  not  shooting.  These  are  the 
examples  usually  used  to  illustrate  what  an  assault  is,  but 
assaults  may  be  committed,  however,  in  a  great  many  other 
ways.  For  instance,  strilcing  with  a  stick  without  hitting, 
within  striking  distance;  pointing  a  gun  within  shooting  dis- 
tance. Those  are  the  examples  usually  used,  but  I  say  an 
assault  may  be  committed  in  a  great  many  other  ways."  In 
this  we  see  no  error. 

The  second  exception  is  as  follows :  "  Because  his  honor 
erred  in  charging  the  jury  that  before  any  one  can  excuse 
himself  from  murder  he  must  be  able  to  show  beyond  a  rea- 
sonable doubt  that  he  did  it  from  necessity."  His  honor  re- 
called the  jury,  and  corrected  that  part  of  his  charge  referred 
to  in  this  exception.  This  exception  can  not,  therefore,  be 
sustained. 

The  third  exception  is  as  follows :  "  Because  his  honor 
erred  in  recalling  the  jury  from  their  room  after  they  had  re- 
tired to  deliberate  upon  the  case,  and  recharging  them  as  to 
the  law  of  the  case,  there  being  no  request  for  such  action  on 
the  part  of  the  jury."  The  principle  governing  such  cases  is 
found  in  the  case  of  llopt  v.  People,  104  U.  S.  631,  in  which 
the  court  says :  "  But,  independently  of  this  consideration  as 
to  the  admissibility  of  the  evidence,  if  it  was  erroneously  ad- 


^-M; 


40 


AMERICAN  CRIMINAL  REPORTS. 


mitted,  its  subsequent  withdrawal  from  the  case,  with  the 
accompanying  instructions,  cured  the  error.  It  is  true  in  some 
instances  there  may  be  such  strong  impressions  made  upon 
the  minds  of  a  jury,  by  illegal  and  improper  testimony,  that 
its  subsequent  withdrawal  will  not  remove  the  effect  caused 
by  the  admission;  and  in  that  case  the  original  objection  may 
avail  on  appeal  or  writ  of  error.  But  such  instances  are  ex- 
ceptional. The  trial  of  a  cause  is  not  to  be  suspended,  the  jury 
discharged,  a  new  one  summoned,  and  the  evidence  retaken, 
when  an  error  in  the  admission  of  testimony  can  be  corrected 
by  its  withdrawal,  with  proper  instructions  from  the  court  to 
disregard  it.  We  think  the  present  case  one  of  that  kind. 
State' V.  May,  4  Dev.  330;  Goodnow  v.  Hill,  125  Mass.  589; 
Smith  V.  Whitman,  6  Allen,  5G2;  Ilawes  v.  Gustin,  2  Allen, 
402;  Dillin  v.  People,  8  Mich.  369;  Sjyecht  v.  Howard,  16  Wall. 
5fi4."    The  third  exception  is  overruled. 

The  fourth  exception  is  as  follows :  "  Because  his  honor 
erred  in  charging  the  jury  that  a  man  has  not  the  same  right 
to  repel  force  by  force  out  on  his  lands  away  from  his  castle 
that  he  has  in  his  home."  His  honor  charged  the  jury  that 
"  out  on  the  land,  away  from  his  castle,  he  has  not  the  same 
right  there  that  he  has  in  his  home .  *  *  *  If  a  man  warns 
another  off  his  place,  and  that  man  comes  on  it,  he  is  guilty  of 
a  crime — a  misdemeanour;  and  for  that  misdemeanour  he  may 
be  tried  in  court.  Of  course,  the  law  prescribes  the  same  in 
regard  to  his  home,  but  he  has  an  additional  riglit  to  put  him 
out;  and  use  sufficient  force  and  put  him  out,  but  the  force  must 
not  be  disproportionate."    In  this  there  was  no  error. 

The  fifth  exception  is  as  follows :  "  Because  his  honor  erred 
in  charging  the  jury  that  M.  M.  Lightsey  had  no  right  to  carry 
his  gun  on  his  own  premises."  Alter  his  honor  had  charged  the 
jury  as  stated,  in  reviewing  the  fourth  exception  he  added: 
"  But  I  charge  you,  a  man  has  no  right  to  take  his  gun  and 
run  a  man  off  his  place.  That  is  simply  taking  the  law  into 
his  own  hands."    In  this  there  was  no  error. 

It  is  the  judgment  of  this  court  that  the  judgment  of  the 
Circuit  Court  be  affirmed. 

"^0111..— Asmult— Teacher  and  Pupil— The  punishment  which  a  teacher 
may  administer  to  a  pupil,  is,  by  provision  of  statute,  required  to  be  mod- 
erate, and  a  teacher,  for  giving  an  unndy  pupil  sixty-six  blows  with  his 
hands,  where  the  pupil  remained  insubordinate  until  the  sixty-third  stroke, 


STATE  V.  CODY. 


41 


may  be  convicted  and  punished  for  assault.  Whitney  v.  State,  33  Tex.  Cr. 
Rep.  173.  The  appellant,  a  school  teacher,  was  convicted  of  a  simple  as- 
sault ujwn  one  of  his  pupils,  a  boy  seventeen  years  of  a^^e.  The  boy  carried 
a  small  bottle  of  brandy  cherries  to  the  school  and  divided  it  among  the 
other  pupils,  and  was  punished  therefor  by  apjiellant.  The  boy  counted 
aloud  the  blows  as  they  were  given,  until  he  had  received  sixty-throe,  and 
then  ceased  to  count,  wliereupon  appellant  gave  liim  three  more.  Appel- 
lant stated  that  he  whipped  him  with  his  right  lumd  until  it  was  numbed 
and  then  changed  to  his  left,  and  intended  to  continue  the  wliipping  jus  long 
as  the  ct)unting  continued  or  he  was  worn  out.  The  boy  was  nmch  bruised 
and  stilf  from  the  beating. 

Mr.  Justice  Simpkins,  speaking  for  the  court,  says:  "  While  the  law  does 
not  attempt  to  define  any  method  of  controlling  refractory  pupils,  it  de- 
clares that  the  punishment  inflicted  shall  bo  moderate.  Certainly  the  pun- 
ishment here  inflicted  can  not  be  so  regarded.  Nor  can  the  proposition  be 
maintained  that  a  teacher  has  a  right  to  whip  a  pupil  as  long  as  lie  appears 
unsubdued.  In  controlling  the  pupil  he  can  not  exceed  the  limit  fixed  by 
the  statute,  wliich  is  that  the  correction  must  be  moderate,  and  a  punish- 
ment may  greatly  exceed  this  limit  without  subduing  the  spirit  or  endur- 
ance of  the  pupil  upon  whom  it  is  inflicted.  The  facts  of  the  case  justify 
the  verdict  of  the  jury,  and  it  is  iiflirined."' 

[Tlie  practice  of  whipping  pui>ils  h.'us  come  down  to  us  as  one  of  the  bar- 
barisms of  the  past.  If  a  pupil  pcsrsist  in  disobeying  rules  of  decorum  and 
discipline  he  should  be  dismissed  from  the  school.— Ed.] 


State  v.  Cody. 


1 

8 

'  '  '  <fi 

^ 

*  '  4is  * 

vlv 

m 

(94  Iowa,  169.) 
Assault  :    Inntructions — Verdict. 


.^•^sj 


1.  Tlie  refusal  of  an  instruction  which  is  fully  covered  by  the  Instructions 

given,  is  not  ground  for  reversal. 

2.  An  accpiittal  of  assault  with  intent  to  inflict  great  bodily  injury,  by 'a 

finding  of  guilty  of  an  assault  only,  is  not,  in  legal  effect,  an  acquittal 
of  tlie  lower  degree  of  simple  assault,  on  the  groimd  tliat  it  is  a  practi- 
cal finding  that  the  blow  admitted  tt)  have  been  struck  was  not  unlaw- 
ful, and  a  battery,  and  hence  that  there  could  have  been  no  assault 
under  the  ailmitted  facts. 

3.  Instructions  defining  an  assault  as  "  an  unlawful   attempt  to  commit 

violence  uiMin  the  jiorson  of  ant)thor,  with  the  present  ability  to  do  so," 
and  defining  a  battery  as  "an  unlawful  beating  of  another,"  is  not 
renderetl  erroneous  by  the  use  of  the  w(jrds  "  tinlawful  attempt,"  and 
the  omission  of  the  words  "  with  full  force  or  violence." 


Appeal  from  District  Court,  Tama  County;  J.  li.  Caldwell, 


Judjje. 


42 


AMERICAN  CRIMINAL  REPORTS. 


a  •  ■ 


■ti.'; 


1     V 


Indictment.    Verdict  of  guilty,  and  the  defendant  ai)pcaled. 
Affirmed. 

W.  n.  Stivers,  for  appellant. 

Milton  RemU]}^  Attorney-General,  and  Tlios.  A.  Cheshire, 
for  the  State. 

Granger,  J.  1.  The  indictment  is  for  an  assault  with  in- 
tent to  inflict  great  bodily  injury.  The  verdict  is  for  an 
assault.  The  particulars  of  the  offense,  as  charged,  are  that 
the  defendant "  did  make  an  assault  on  one  Lorenzen,  and  did 
hit,  bruise,  and  inflict  certain  sore  and  grievous  wounds  upon 
the  head  of  the  said  Lorenzen,  with  intent,"  etc.  The  court 
instructed  the  jury  as  to  the  offense  charged,  and  also  as  to 
an  assault  and  battery  and  an  assault.  Tiie  circumstances  of 
the  offense  charged  are,  in  brief,  that  the  defendant,  Lorenzen, 
one  Skinner,  and  others,  were  in  a  saloon,  where  there  was  a 
controversy  on  politics,  when,  as  claimed  by  defendant,  Loren- 
zen and  others  made  an  assault  on  Skinner,  and  were  about  to 
inflict  on  him  serious  injuries,  when  he  took  up  the  chair  and 
struck  the  blow  complained  of  in  defense  of  Skinner.  The 
defendant  asked  an  instruction  to  the  effect  that  if  the  blow 
was  struck  b}'  defendant  in  necessary  defense  of  Skinner, 
when  he  was  being  beaten  by  Lorenzen  and  others,  and  was  in 
danger  of  bodily  harm,  and  that  defendant  had  no  other  pur- 
pose in  striking  the  blow  than  to  prevent  the  injury,  and  used 
no  more  force  than  was  necessary  for  that  purpose,  then  the 
defendant  was  not  guilty.  The  correctness  of  the  instruction 
asked  is  not  questioned,  but  we  think  the  same  legal  thought 
is  presented  in  a  single  instruction  given  by  the  court,  and, 
together,  the  instructions  given  elaborate  the  thought,  and 
give  it  quite  especial  prominence. 

2.  The  evidence  conclusively  shows  that  the  defendant 
struck  Lorenzen  with  a  chair.  Defendant  was  a  witness,  and 
so  said.  It  is  urged  that,  by  the  verdict  for  an  assault  only, 
there  is  a  practical  finding  that  the  blow  struck  was  not  un- 
lawful, and  hence,  as  the  blow  was  lawful,  the  assault  leading 
to  the  blow  could  not  have  been  unlawful.  Appellant  cites  a 
line  of  cases  to  support  the  rule;  and  speaks  of  State  v.  Sigg, 
86  Iowa,  746,  53  N.  W.  261,  as  decisive  of  the  question.  That 
was  an  indictment  for  rape,  and  the  court  did  not  instruct  as 


STATE  V.  CODY. 


43 


to  an  assault,  and  the  verdict  was  for  an  assault  with  intent  to 
commit  rape.  The  action  of  the  court  is  sustained,  and  it  is 
there  said :  "  While  there  was  evidence  of  an  assault,  there 
was  none  from  which  an  assault  could  be  found  without  find- 
ing a  battery  also." 

Another  case  much  relied  on  is  State  v.  Mahan,  68  Iowa,  304, 
20  N.  W.  449,  and  27  N.  W.  249.  The  indictment  was  for 
murder  in  the  first  degree,  and  the  verdict  was  for  manslaugh- 
ter. Complaint  was  made  that  the  court  did  not  instruct  as  to 
degrees  lower  than  manslaughter,  but  told  the  jury  that  if  the 
defendant  was  not  guilty  of  murder  or  manslaughter  it  must 
acquit.  It  was  admitted  that  the  defendant  inflicted  the 
wound  that  resulted  in  the  death,  and  unless  the  blow  was 
struck  in  self-defense,  beyond  any  peradventure,  there  was  a 
criminal  homicide.  These  cases  fairly  illustrate  the  line  of 
authorities  cited.  The  holdings  are,  that  in  cases  where  it 
so  conclusively  appears  that,  if  there  is  any  crime,  it  is  one  of 
the  higher  degrees  included  in  that  charged  in  the  indictment, 
it  is  not  error  to  refuse  to  charge  as  to  the  lower  degrees;  and 
although  some  language,  argumentatively  used,  may  seem  to 
express  a  broader  rule,  when  limited,  as  it  should  be,  by  the 
subject-matter,  it  does  not.  An  instruction  so  given  only 
takes  from  the  jury  a  right  to  convict  of  a  lower  degree  of  the 
crime  charged,  that  may  have  fuller  support  in  the  evidence, 
because  the  evidence  that  warrants  a  conviction  of  such  lower 
degree,  just  as  conclusively  warrants  a  conviction  of  the  higher 
degree.  Now,  a  defendant  has  no  just  grounds  of  complaint 
if  the  court,  in  such  a  case,  shall  limit  the  action  of  the  jury 
to  a  conviction  of  the  higher  degree  or  an  acquittal.  But  we 
think  it  can  not  be  said  to  be  error,  prejudicial  to  the  defend- 
ant, if,  in  such  a  case,  the  court  should  permit  the  jury  to  find 
as  to  the  lower  degree,  if  the  testimony  sustains  the  finding, 
which,  of  course,  it  must  do  to  sustain  a  finding  in  the  higher 
degree.  It  amounts  to  simply  this :  A  defendant  who  has 
committed  an  offense  of  a  higher  or  the  highest  degree 
charged,  is  convicted  of  a  lower  degree  of  which  he  is  guilty. 
liy  such  a  course  he  is  not  prejudiced.  It  is,  however,  said 
that  the  verdict  of  an  assault  is  a  practical  fin<ling  that  there 
was  not  a  battery,  and  if  not,  in  view  of  the  admitted  facts, 
there  was  no  assault.  But  the  jury  found  that  there  was  an  as- 
sault, though  not  a  battery.    The  district  court,  as  well  as  this 


U  B' 


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AMERICAN  CRIMINAL  REPORTS. 


court,  thinks  the  finding  is  sustained  by  the  evidence,  and 
this  court  would  have  sustained  a  finding  of  an  assault  and 

battery. 

Of  course,  the  verdict  concludes  the  case  as  to  the  degree  of 
assault  and  battery,  but  we  know  of  no  rule  to  warrant  us  in 
disturbing  a  verdict  of  a  degree  of  the  offense  charged,  that 
has  support,  merely  because  we  can  not  account  for  a  failure 
to  find  a  verdict  for  a  higher  degree.  Under  an  instruction 
given  as  to  a  conviction  only  of  that  degree  of  which  there  was 
no  reasonable  doubt,  the  action  of  the  jury  may  be  accounted 
for,  so  far  as  we  are  required  to  notice  that  fact.  In  some  of 
the  cases,  where  the  effect  of  the  evidence  is,  as  we  have  indi- 
cated, to  establish  the  higher  degree  of  the  offense  as  conclu- 
sively as  it  does  the  lower,  substantially  such  language  as  this 
is  used:  "Under  the  evidence,  the  defendant  is  guilty  of  a 
higher  degree  or  nothing."  It  is  sought  to  attach  to  this  lan- 
guage a  legal  inference  that  an  acquittal  of  the  higher  degree 
is  an  acquittal  of  the  lower  degree.  Such  a  conclusion  is  not  a 
necessary  inference  from  the  language.  We  see  no  reason  why 
the  negative  or  inferential  finding  as  to  the  higher  degree 
should,  as  matter  of  law,  override  the  affirmative  or  actual 
finding  as  to  the  lower  degree.  As  a  logical  or  rational  prop- 
osition, the  affirmative  finding  as  to  the  lower  degree,  in  such 
a  case,  would  convict  of  the  higher  degree.  Such  could  not, 
of  course,  be  a  legal  result.  The  language  of  the  cases  referred 
to,  is  correct  as  indicating  that  there  is  as  conclusively  actual 
guilt  of  one  degree  of  the  offense  as  of  the  other,  but  its  legal 
effect  is  not  to  hold  that,  when  the  jury  shall  acquit  of  the 
higher  degree  by  a  finding  of  guilt  as  to  the  lower,  there 
should  be  an  acquittal  as  to  both,  if  the  verdict  actually 
returned  has  support  in  the  evidence. 

3.  The  court  in  one  instruction  defined  an  assault  as  "  an 
unlawful  attempt  to  commit  violence  upon  the  persoji  of 
another,  with  the  present  ability  to  do  so."  In  anotiior 
instruction  the  court  said :  "  A  battery  is  an  unlawful  beating 
of  another.  Every  battery  includes  an  assault."  The  com- 
plaint is  of  the  words  "  unlawful  attempt,"  and  leaving  out  the 
words  "  with  full  force  or  violence."  In  the  first  lefinition 
the  element  of  violence  is  clearly  indicated.  We  .  hink  the 
definition  in  either  case  is  sufficiently  accurate.  In  Bishoi)'s 
jNfew  Criminal  Law  (volume  1,  §  548),'  it  is  said :    «'  A  battery 


STATE  V.  CODY. 


45 


is  an  unlawful  beating,  or  other  physical  violence  or  constraint, 
inflicted  upon  a  human  being  without  his  consent.  *  *  * 
An  assault  is  included  in  every  battery."  This  language 
clearly  indicates  that  an  unlawful  beating  is  a  wrongful  phys- 
ical violence.  Some  other  points  are  touched  upon  in  argu- 
ment, but  no  error  is  shown.    The  judgment  is  affirmed. 

KiNXE,  J.,  took  no  part  in  this  case. 

Note. — Power  to  puninh. — St.  1893,  c.  396,  §  86,  provides  that  the  offense 
of  assault  and  battery,  tried  in  a  police  or  district  court,  is  punishable  by 
imprisonment  in  the  jail  or  the  house  of  correction  for  a  term  not  exceed- 
ing one  year,  or  by  a  fine  not  exceeding  $100.  Pub.  St.,  c.  215,  Sec.  1  (St. 
1782,  c.  9,  Sec.  1),  provides  that  in  cases  of  legal  conviction,  where  no 
punishment  is  provided  by  statute,  the  superior  court  shall  award  a  sen- 
tence according  to  the  nature  of  the  offense,  and  not  repugnant  to  the 
constitution;  but  there  is  no  statute  which  in  terms  defines  what  tlie  punish- 
ment for  an  assault  shall  l)e  where  the  case  is  tried  in  the  superior  court. 
Held,  that  the  superior  court  has  power  to  sentence  a  pereon  convicted 
therein  of  an  assault  to  confinement  in  the  house  of  correction  at  hard  labor 
for  the  term  of  three  years.     O'Neil  v.  Com.,  165  Mass.  446. 

Right  to  anscHs  fine.— One  section  of  the  Code  of  Alabama,  provides  that 
the  jury  shall  fix  the  amount  of  a  fine,  and  another  section  provides  that 
when  an  offense  may  be  punislied,  in  addition  to  a  fine,  by  imprisonment,  the 
jury  shall  not  be  retjuired  to  imijose  a  fine  if,  in  their  judgment,  defendant 
should  be  punished  in  some  other  mode,  but  may  only  find  him  guilty,  and 
leave  the  punishment  to  the  court.  Held,  that  where  a  jury  finds  defend- 
ant guilty,  without  assessing  a  fine,  the  court  can  not  imjiose  a  line.  Sjjicer 
V.  State,  105  Ala.  123. 

Grade  of  offense— Submitting  ijiiestionto  jnrti, — It  is  not  error,  in  a  crim- 
inal prosecution,  to  submit  to  the  jury  the  question  of  the  defendant's  guilt 
of  a  liigher  grade  of  offense  than  that  for  which  the  conviction  is  had, 
provided  there  is  evidence  to  sustain  such  charge,  although  it  is  possible,  or 
even  probable,  that  a  verdict  therefor,  had  one  been  rendered,  would  have 
been  set  aside  as  unsupported  by  the  evidence.  Whitner  v.  State,  46 
Neb.  144. 

In  the  absence  of  the  evidence  from  the  record,  it  must  be  assumed  that 
it  was  sufficient  to  sustain  the  verdict  of  the  jury,  and  that  it  warranted 
the  giving  of  an  instruction  upoji  an  offense  included  within  that  charged 
in  the  information.    State  v.  Kendall,  56  Kas.  288. 

Assatdt — Rescuing  cattle  wrongfully  taken. — In  the  absence  of  proof  of 
a  statute  authorizing  it,  one  has  no  right  to  shut  up  trespassing  stock  owned 
by  anotlier;  and,  if  he  does  so,  the  owner  or  members  of  his  family  may 
rightfully  enter  and  release  it,  and  forcible  resistance  to  such  release  will 
constitute  an  assault.    Co^v  v.  State,  34  S.  W.  754. 

[If  this  pronouncement  of  the  Texas  court  of  criminal  appeals  should  be 
followed  to  its  logical  conclusion  in  all  cases  applicable,  we  would  soon  be 
able  to  dispense  with  courts  and  legislative  assemblies,  and  every  man 
powerful  enough  would  redress  his  own  real  or  imaginary  wrongs.— Ed.] 


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46 


AMERICAN  CRIMINAL  REPORTS. 


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State  v.  Gleim. 
(17  Mont.  17.) 

Assault  with  Intent  to  Mubdeb:    Indictment  against  accessory— Evi- 
dence—Instructions— Examination  of  witness— Comj)etency  of  juror. 

1.  Though  the  distinctions  between  accessories  before  the  fact  and  prin- 

cipals are  abolislied,  an  indictment  first  setting  out  the  guilt  of  tlie  prin- 
cipal offender,  and  then  charging  that,  "  before  the  commission  of  said 
felony,  defendant  did  "  "  counsel,  aid,  incite,  and  procure  "  said  principal 
to  commit  the  felony,  is  unobjectionable. 

2.  On  the  trial  of  one  who,  at  common  law,  would  have  been  an  accessory 

before  the  fact,  the  record  of  conviction  of  the  principal  ia  prima  facie 
evidence  of  the  latter's  guilt. 
8.  Where  one  of  defendant's  attorneys,  before  testifying  for  the  defense, 
did  not  ask  pei-mission  to  argue  the  case,  as  required  by  a  rule  of  court, 
it  was  not  error  to  refuse  to  permit  him  to  do  so. 

4.  A  charge  that  the  law  did  not  require  the  jury  to  be  satisfied  beyond  a 

reasonable  doubt  of  each  link  of  the  chain  of  circumstances,  relied  upon 
to  establish  defendant's  guilt— that  it  was  sufficient  if,  takinj;  all  the 
testimony  together,  the  jury  was  satisfied  beyond  a  reasonable  doubt  of 
defendant's  guilt— was  erroneous,  as  it  was  necessary  for  the  state  to 
prove  beyond  a  reasonable  doubt  each  fact  and  circumstance  necessary 
to  complete  the  chain. 

5.  The  jury  being  the  sole  judges  of  the  weight  of  the  evidence,  it  was  error 

to  charge  that  defendant's  voluntary  admissions,  proved  by  competent 
testimony,  were  entitled  to  great  weight. 

6.  The  prosecution  has  no  right  to  examine  defendant  so  as  to  elicit  testi- 

mony reflecting  on  her  moral  character,  where  it  was  not  proper  cross- 
examination,  and  did  not  legitimately  tend  to  impair  her  credibility. 

7.  A  juror  who  has  formed  a  fixed  opinion  as  to  the  guilt  or  innocence  of 

the  principal  offender  ought  not  to  sit  on  the  trial  of  the  person  charged 
as  an  accessory. 

8.  It  was  proper  to  refuse  to  permit  a  witness  to  be  asked,  for  the  purjwse 

of  affecting  her  credibility,  whether  she  was  addicted  to  the  morphine 
habit,  unless  it  was  intended  to  show  that  she  was  under  the  influence 
of  the  drug  at  the  time  the  events  happened  about  which  she  was  testi- 
fying, or  that  her  powers  of  recollection  were  impaired  thereby. 

9.  An  instruction  defining  moral  certainty,  should  state  that  the  juror  must 

be  so  convinced  by  the  evidence  of  the  truth  of  the  fact,  that  he  him- 
self would  venture  to  act  upon  such  conviction  in  matters  of  the  high-' 
est  concern  and  importance  to  his  own  interests. 

Appeal  from  Fourth  Judicial  District  Court,  Missoula 
County;  F.  H.  Woody,  Judge. 

Mary  Gleim  was  convicted  of  assault  with  intent  to  commit 
murder,  and  appeals.    Reversed. 


the 


STATE  V.  GLEIM. 


47 


Toole  dt  Wallace,  for  appellant. 

//.  J.  Haskell,  Attorney-General,  and  Thos.  C.  Marshall,  for 
the  State,  respondent. 

Hunt,  J.  Patrick  Mason,  Mary  Gleim,  and  "William  Eeed 
were  jointly  indicted  for  an  assault,  with  intent  to  commit 
murder,  upon  one  Burns.  Appellant,  Mary  Gleim,  was  sepa- 
rately tried  after  Mason  had  been  convicted.  She  was  foimd 
guilty,  and  sentenced  to  the  penitentiary  for  fourteen  years. 

1.  Appellant  contends  that  the  indictment  will  not  support 
a  verdict  and  judgment  of  guilty,  "because  it  nowhere 
charges  that  said  Mary  Gleim  committed  the  crime  of  assault 
with  intent  to  murder." 

The  material  charging  parts  of  the  indictment  are  as  fol- 
lows :  "  That  one  Patrick  Mason,  late  of  the  county  of  Mis- 
soula, state  of  Montana,  on  or  about  the  13th  day  of  February, 
A.  D.  1894,  at  the  county  of  Missoula,  in  the  state  of  Montana, 
did  feloniously,  deliberately,  premeditatedly,  and  of  his  malice 
aforethought,  make  an  assault  in  and  upon  one  C.  P.  Burns, 
and  certain  giant  powder  and  other  highly  explosive  substance, 
a  more  particular  description  of  which  is  to  said  jurors  im- 
known,  in,  upon,  around,  and  under  the  house  where  the  said  C. 
P.  Burns  was  then  and  there  present  and  sleeping,  did  feloni- 
ously, deliberately,  premeditatedly,  and  of  his  malice  afore- 
thought, put  and  lay,  and  the  same  did  then  and  there,  feloni- 
ously, deliberately,  premeditatedly,  and  of  his  malice  afore- 
thought, explode,  and  cause  to  be  exploded,  with  intent  in 
him,  the  said  Patrick  Mason,  to  kill  and  murder  the  said  C.  P. 
Burns.  And  that  before  the  commission  of  the  said  felonv,  at 
the  time  and  place  aforesaid,  one  Mary  Gleim  and  William 
Reed  did  feloniously  counsel,  aid,  incite,  and  procure  the  said 
Patrick  Mason  to  commit,  in  manner  and  form  aforesaid,  the 
said  felony.  All  of  which  is  contrary  to  the  form  of  the  stat- 
ute," etc. 

The  indictment  is  substantially  a  common  law  charge 
against  Mason  as  principal  and  Marj''  Gleim  as  an  accessory 
before  the  fact.  It  follows  the  precedents  of  "Wharton  (1 
Whart.  Prec.  Ind.,  §  97)  and  of  Archbold  (Archb.  Cr.  Prac.  «fe 
PI.  pp.  67,  77).  Bishop  on  Criminal  Procedure  (Volume  2,  §  S), 
quoting  Chitty  on  Criminal  Law,  lays  down  the  course  to  be, 
first,  to  state  the  guilt  of  the  principal,  as  if  he  alone  had 


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AMERICAN  CRIMINAL  REPORTS. 


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been  concerned;  and  then,  in  case  of  accessories  before  the 
fact,  to  aver  that  the  procurer,  "  before  the  committin^^  of  the 
said  felony,  in  form  aforesaid,  to  wit,  on,  etc.,  with  force  and 
arms,  etc.,  did  maliciously  and  feloniously  incite,  move,  procure 
aid,  and  abet  (or  counsel,  hire,  and  command)  the  said  princi- 
pal felon  to  do  and  commit  the  said  felony,  in  manner  afore- 
said, a<j;ainst  the  peace,"  etc. 

The  statutes  (sections  176,  177,  Cr.  Prac.  Act  1887)  provide : 

"  Sec.  176.  Any  person  who  counsels,  aids  or  abets  in  the 
commission  of  any  offense,  may  be  charged,  tried  and  convicted 
in  the  same  manner  as  if  he  were  a  principal. 

"  Sec.  177.  An  accessory  before  the  fact,  to  the  commission 
of  a  felon}',  may  be  indicted,  tried  and  punished;  though  the 
principal  be  neither  indicted  nor  tried." 

By  section  12,  c.  2,  p.  502,  Comp.  St.,  1887,  it  is  provided  : 
"  Any  person  who  stands  by,  and  aids,  abets  or  assists,  or  who, 
not  being  present,  hath  advised  and  encouraged  the  commis- 
sion of  a  crime,  shall  be  deemed  a  principal  offender,  and 
shall  be  punished  accordingly." 

It  is  plain  that  the  old  distinctions  between  accessories  be- 
fore the  fact  and  principals  are  abolished  by  these  statutes 
{State  V.  Iu)ig,  9  Mont.  415,  24  Pac.  265);  but  we  see  no  ob- 
jection to  the  form  of  an  information  charging  a  person  as  an 
accessory  rather  than  as  a  principal.  To  so  charge  is  to  the 
advantage  of  a  defendant,  because  it  notifies  him  of  the  atti- 
tude which  the  state  will  assume  when  the  case  is  brought  to 
trial,  by  setting  out  the  facts  constituting  the  offense  with 
greater  certainty  than  is  requisite  where  an  accessory  is  in- 
dicted as  a  principal. 

This  point  was  directly  raised  in  People  v.  Emelle,  78  Cal. 
84,  20  Pac.  30,  where  the  court  held  that  an  information  stat- 
ing facts  sufficient  to  constitute  a  defendant  an  accessory  at 
common  law  charges  him  with  guilt  as  a  principal  under  the 
statutes,  and  that  to  allege  such  facts  as  would  have  been  suf- 
ficient against  him  as  an  accessory  at  common  law,  is  charging 
him  as  a  principal  under  the  statute.  We  are  of  opinion  that 
the  rights  of  the  defendant  were  not  prejudiced  by  the  form 
of  the  charge.  State  v.  Littell  (La.),  12  South.  750;  Territory 
V.  Guthrie,  2  Idaho,  398. 

2.    On  the  trial  of  the  appellant,  Gleim,  the  court,  over  the 


STATE  V.  GLEIM. 


49 


■A 


objection  of  the  defendant,  permitted  the  record  of  the  convic- 
tion of  Mason,  the  principal  actor,  to  be  introduced,  and  after 
having  fully  instructed  the  jury  that  it  was  essential,  in  order 
to  convict  the  defendant,  Gleim,  that  they  should  find  that 
Mason  was  guilty  of  having  committed  the  crime  charged,  in- 
structed as  follows :  "  That  the  record  of  the  trial  and  con- 
viction of  Patrick  Mason  was  introduced  in  the  trial  of  this 
case,  f^r  the  purpose  of  establishing  as  a,  fact,  prima  facie,  the 
guilt  of  said  Mason.  Tlie  record  is  prima  facie  evidence  of 
the  guilt  of  said  Mason,  but  it  is  not  conclusive  evidence.  It, 
however,  remains  prima  facie  evidence  of  the  fact  which  it 
was  introduced  to  prove,  unless  you  believe  from  the  evidence 
in  this  case  that  the  defendant,  Mary  Gleim,  has  introduced 
evidence  in  this  case  which  raises  in  your  minds  a  reasonable 
doubt  (as  explained  in  these  instructions)  of  the  guilt  of  said 
Mason;  but,  if  such  testimony  raises  in  your  minds  such  reason- 
able doubt  of  the  guilt  of  Mason,  then  you  should  lind  the  de- 
fendant Gleim  not  guilty.  But,  unless  the  evidence  introduced 
by  the  defendant  Gleim  does  raise  in  your  minds  a  reasonable 
doubt  (as  explained  in  these  instructions)  of  the  guilt  of  the 
said  defendant  Mason,  you  should  receive  such  record  of  trial 
and  conviction  as  evidence  establishing  the  guilt  of  said  Patrick 
James  Mason.  But,  in  determining  the  question  of  the  guilt 
or  innocence  of  the  said  Patrick  James  IVfason,  you  are  not 
confined  to  the  record  of  trial  and  conviction  introduced  in 
this  case,  but  you  should  carefully  consider  all  of  the  evidence 
introduced  in  this  case  tending  to  prove  or  disprove  the  guilt 
of  said  Mason;  and  after  a  full  and  careful  consideration  of  all 
the  evidence  in  the  case,  in  connection  with  the  record  in  evi- 
dence, you  have  a  reasonable  doubt  of  the  defendant  Mason's 
guilt,  you  should  find  the  defendant  Gleim  not  guilty." 

While  it  is  true  that  the  statute  makes  an  accessory  before 
the  fact  a  principal,  yet  the  evidentiary  facts  by  which  the 
accessory  is  to  be  incriminated  may  materially  differ  from 
those  which  are  necessary  and  sufficient  to  convict  the  princi- 
pal. In  this  case,  for  instance,  to  incriminate  the  appellant, 
Gleim,  at  all,  under  the  theory  of  the  state,  as  charged  and 
contended  for,  it  was  not  only  necessary  to  prove  the  guilt  of 
Mason,  as  alleged,  but  to  go  further,  and  to  demonstrate  be- 
yond a  reasonable  doubt  that  the  appellant,  Gleim,  counseled, 
aided,  and  abetted  Mason  in  the  perpetration  of   the  crime 


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50 


AMERICAN  (CRIMINAL  REPORTS. 


charged.  Therefore,  although  the  accessory  might  be  deemed 
a  principal  under  the  statute,  and  was  indicted  witii  the  prin- 
cipal, it  became  impossible  for  the  state  to  convict  appellant 
upon  the  same  evidence  applicable  to  the  principal,  because 
the  agency  of  the  accessory  in  the  perpetratio.i  of  the  crime 
charged,  operated  by  a  radically  dilfcrent  method  from  the 
principal's.  The  statute,  in  simplifying  the  procedure,  has  ob- 
literated old  distinctions  between  principals  and  accessories, 
but  the  object  of  the  simplification  is  largely  to  enable  a  guilty 
accessory  to  be  punished  without  making  his  guilt  depend 
upon  the  conviction  of  the  principal.  The  facts,  howev(5r,  that 
the  principal  offense  was  committed,  and  that  the  principal 
who  was  charged  to  have  committed  it  was  guilty,  were  among 
the  essential  elements  upon  which  must  be  predicated  the  guilt 
of  the  accessory  Gleim.  And  right  here  is  to  be  observed  an 
important  distinction  between  proof  of  a  charge  against  a 
principal,  and  an  accessory  made  j>rinci|)al  by  the  statute  alone 
(but  indicted  with  the  principal,  as  in  the  case),  and  proof  of  a 
charge  against  several  persons,  ordinarily  jointly  indicted  as 
simple  co-defendunts,  and  who  are  in  fact  principals.  In  the 
one  instance,  the  accessory  before  the  fact  being  confessedly 
absent  at  the  time  of  the  commission  of  the  princi))al  offense, 
there  can  be  no  conviction  without  proof  of  the  guilt  of  the 
principal;  while,  in  the  other  case,  whether  or  not  any  defend- 
ant other  than  the  one  on  trial  participated  in  the  criminal  act 
is  immaterial,  and  forms  no  essential  part  of  the  case  against 
the  defendant  on  trial.  Where,  therefore,  as  in  this  case,  the 
guilt  of  the  principal  must  be  proved  as  part  of  the  case  against 
the  accessory,  we  can  not  think  that  it  is  necessary  for  the 
state,  where  the  principal  has  been  convicted,  to  do  more  on 
it&  prima  facie  case  than  to  offer  the  record  of  conviction  of 
the  principal  a.s  prima  facie  evidence  of  his  guilt  of  the  crime 
charged  against  him.  We  do  not  think  that  the  fact  that  the 
principal  has  been  convicted,  is  proof  of  the  guilt  of  the  acces- 
sory. But  it  does  make  out  a  prima  facie  case  of  the  prin- 
cipal's guilt,  and  unless  rebutted  by  evidence  of  the  accessory, 
as  it  may  be,  is  competent  to  prove  that  material  element  of 
the  crime  charged  against  the  accessory,  and  upon  the  truth 
of  which  must  depend  the  guilt  of  the  accessory;  namely,  the 
commission  of  the  crime  of  the  principal,  for  which  she  is  held 
responsible  in  law,  provided  she  procured  or  aided  and  abetted 


STATE  V.   GLEIM. 


51 


tho  principal  to  commit  the  same.  Although  there  are  some 
cases  hoklinj[5  a  contrary  view,  we  an;  satisMed  with  the  reason- 
ing of  the  authorities  which  permit  tho  introduction  of  the 
record  of  the  conviction  of  the  principal.  {Mayhee  v.  Avery,  18 
Johns.  852;  People  v.  Bnclland,  13  Wend.  51)3;  Levy  v.  People^ 
80  N.  Y.  327;  State  v.  Mosley,  31  Kan.  355;  2  Pac.  782;  Com. 
V.  Knapj),  10  Pick.  477;  Abb.  Trial  Brief  (Cr.),  §  624;  Ander- 
son V.  State,  03  Ga.  075;  Rose.  Cr.  Ev.,  p.  171;  1  Russ.  Crimes, 
p.  67;  Archb.  Cr.  Prac.  &  PI.,  p.  83;  Com.  v.  York,  9  Mete. 
(Mass.)  93;  Studsill  v.  State,  7  Ga.  2). 

3.  Joseph  K.  Wood,  Esq.,  of  counsel  for  appellant,  was  a 
witness  in  defendant's  behalf  upon  the  trial.  He  desired  to 
participate  in  the  argument  for  the  defense.  The  court  re- 
fused to  permit  him  to  do  so,  under  a  rule  of  court  which  pro- 
vides that  if  the  attorney  of  either  party  offers  himself  as  a 
witness  in  behalf  of  his  client,  and  gives  evidence  on  the 
merits  of  the  trii'l,  he  shall  not  argue  the  case  or  sum  it  up  to 
the  jury,  unless  by  permission  of  the  court.  It  does  not  ap- 
pear by  tho  record  that,  before  the  counsel  testified,  he  ex- 
plained to  the  court  his  position,  and  asked  permission  to  argue 
the  case.  Under  the  circumstances,  we  can  not  think  that  the 
enforcement  of  the  rule  was  erroneous  or  even  harsh. 

4.  The  defendant  asked  the  court  to  instruct  the  jury  upon 
the  law  of  circumstantial  evidence,  as  follows :  "  The  testi- 
•»iony  in  this  case  is  wholly  circumstantial.  And  while  it  is 
not  necessary,  in  order  to  warrant  a  conviction  on  a  criminal 
charge,  for  the  state  to  prove  the  commission  of  the  act  by  an 
eyi  itness  or  by  direct  testimony,  and  while  the  guilt  of  the 
defendant  may  be  established  by  circumstantial  evidence,  still, 
in  order  to  support  a  conviction  upon  circumstantial  evidence 
alone,  each  fact  and  circumstance  necessary  to  complete  the 
chain  to  fasten  i  he  guilt  upon  the  defendant  must  itself  be  dis- 
tinctly and  independently  proven  by  competent  evidence  be- 
yond a  reasonable  doubt;  and  all  the  facts  and  circumstances, 
when  so  proven,  must  not  only  be  sufficient  in  themselves  to 
satisfy  the  mi  d  of  the  guilt  of  the  accused  beyond  a  reason- 
able doubt,  but  they  must  exclude  every  other  reasonable  sup- 
position except  that  of  his  guilt." 

The  court  modified  the  instruction  offered,  and  gave  another 
upon  the  subject  of  circumstantial  evidence,  so  that  the  jury 
were  instructed  as  follows :    "  The  testimony  in  this  case  is 


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52 


AMERICAN  CRIMINAL  REPORTS. 


wholly  circumstantial.  And  while  it  is  not  necessar}^,  in 
order  to  warrant  a  conviction  on  a  criminal  charge,  for  the 
state  to  prove  the  commission  of  the  act  by  eyewitnesses  or 
direct  testimony,  and  while  the  guilt  of  the  defendant  may  be 
established  by  circumstantial  evidence,  still,  in  order  to  sui> 
port  a  conviction  upon  circumstantial  evidence  alone,  each 
fact  and  circumstance  necessary  to  complete  the  chain  to 
fasten  the  guilt  upon  the  defendant  must  itself  be  independ- 
ently proven  by  competent  evidence;  and  all  the  facts  and 
circumstances,  when  so  proven,  must  not  only  be  sufficient 
in  themselves  to  satisfy  the  mind  of  the  guilt  of  the  accused 
beyond  a  reasonable  doubt,  but  they  must  exclude  every  other 
reasonable  supposition  except  that  of  his  guilt." 

"  That  the  law  requiring  the  jury  to  be  satisfied  of  the  de- 
fendant's guilt  beyond  a  reasonable  doubt  in  order  to  warrant 
a  conviction  does  not  require  that  you  should  be  satisfied  be- 
yond a  reasonable  doubt  of  each  link  of  the  chain  of  circum- 
stances relied  upon  to  establish  the  defendant's  guilt;  it  is  suf- 
ficient if,  taking  all  of  the  testimony  together,  you  are  satisfied 
beyond  a  reasonable  doubt  that  the  defendant  is  guilty." 

The  charge  that,  in  order  to  warrant  a  conviction,  the  jury 
must  not  be  satisfied  beyond  a  reasonable  doubt  of  each  link 
in  the  chain  of  circumstances  relied  upon  to  establish  the  de- 
fendant's guilt,  but  that  it  is  sufficient  if,  taking  all  the  testi- 
mony together,  they  are  satisfied  beyond  a  reasonable  doubt 
that  the  defendant  is  guilty,  is  erroneous  and  prejudicial  to  the 
rights  of  the  defendant.  This  identical  instruction  was  re- 
viewed by  the  supreme  court  of  Colorado  in  the  recent  and 
somewhat  celebrated  Dr.  Graves  murder  case  {Graves  v.  Peo- 
ple, 32  Pac.  63).  The  court  there  condemn  the  instruction 
upon  principle,  as  tending  to  confuse  a  jury,  and  well  express 
our  views  by  saying  that  "  the  jury  are  quite  as  likely  to  have 
applied  that  portion  of  the  instruction  referring  to  the  links 
to  those  facts  which  the  law  requires  to  be  established  beyond  a 
reasonable  doubt  to  warrant  conviction  as  to  those  evidentiary 
matters  whic.  ^o  to  prove  such  facts,  and  one  or  more  of 
which  may  fail,  while  the  ultimate  fact  might  still  be  suf- 
ficiently established." 

An  Illinois  case  {Bressler  v.  People,  117  III.  422,  SN.  E.  G2), 
has  approved  of  the  instructions  here  complained  of,  but  the 
reasoning  supporting  the  conclusion  of  the  court  is  not  sound. 


res 
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4  \ 


STATE  V.  GLEIM. 


53 


"  It  involves,"  says  Thompson  on  Trials  (volume  2,  §  2514), 
"  the  solecism  that,  although  the  circumstances  do  arrange 
tliemselves  in  the  form  of  the  links  of  a  chain,  yet  that,  when 
one  link  of  the  chain  is  broken,  the  chain  itself  maj'  still  re- 
main entire;  ignoring  the  obvious  conception  that  no  chain  can 
bo  stronger  than  its  weakest  link."  The  authorities  disap- 
proving of  these  instructions  are  collected  in  the  Colorado  de- 
cision to  which  we  have  referred.  We  believe  it  to  be  correct 
that  the  prosecution  need  not  prove  beyond  a  reasonable  doubt 
every  circumstance  offered  in  evidence  which  tends  to  estab- 
lish the  ultimate  circumstances  or  facts  on  which  it  relies  for 
a  conviction,  but  if  the  metaphor  of  a  chain  is  used,  and  each 
circumstance  relied  upon  forms  a  link,  the  link  becomes  a  nec- 
essary part  of  the  whole  chain,  and  must  therefore  be  proved 
beyond  a  reasonable  doubt. 

The  cable  metaphor,  as  a])proved  by  the  Colorado  supreme 
court  in  Clare  v.  l\'oj)7(\  9  Colo.  122  (10  Pac.  790),  illustrates 
the  force  of  circumstantial  evidence  more  clearly,  perhaps,  than 
does  the  chain  comparison.  In  the  cable  simile  the  circum- 
stances which  tend  to  establish  the  ultimate  circumstances  or 
facts  are  aptly  compared  with  the  strands  of  a  cable.  All  such 
evidentiary  matters  going  to  prove  such  ultimate  circum- 
stances or  facts  need  not  be  established  be^'ond  a  reasonable 
doubt,  and  still  each  ultimate  fact  or  circumstance  must  be 
proved  beyond  a  reasonable  doubt;  just  as  a  few  strands  of  the 
cable  may  part,  and  yet  it  still  remains  so  strong  "  that  there 
is  scarcely  a  possibility  of  its  breaking."  We,  therefore,  think 
that,  if  the  chain  metaphor  is  to  be  used,  the  instruction,  as 
offered,  correctly  stated  the  law,  and  that  it  is  necessary  for 
the  state  to  prove  each  fact  and  circumstance  necessary  to 
complete  the  chain,  *  *  *  by  competent  evidence,  be- 
yond a  reasonable  doubt,  etc.,  and  that  it  was  rovcrsible  error 
to  charge  to  the  contrary.  Territory  v.  JfcAndrews,  3  Mont. 
158. 

There  are  other  errors  complained  of  by  the  appellant.  The 
respondent  contends  that  they  are  not  properly  before  us  for 
review,  but,  as  the  case  must  be  tried  again,  we  will  briefly 
refer  to  them. 

First.  Error  is  assigned  upon  the  following  instruction: 
"  That  parol  evidence  of  the  verbal  admissions  of  a  defendant 
may  be  evidence  of  a  most  satisfactory  character.    If  the  jury 


B^     ^a 


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54 


AMERICAN  CRIMINAL  REPORTS. 


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can  see,  from  the  evidence,  that  the  alleged  admissions  of  the 
crime  charged  in  the  indictment  were  clearly  and  understand- 
ingly  made  by  the  defendant,  and  that  they  were  precisely 
identified,  and  the  language  correctly  and  accurately  repeated 
by  the  witness,  then  such  testimony  is  entitled  to  great 
weight."  It  was  error  in  the  court  to  instruct  the  jury  that 
testimony  of  admissions  of  defendant  was  entitled  to  great 
weight.  The  jury  being  the  sole  judges  of  the  weight  to  be 
given  to  the  testimony,  the  court  should  not  tell  them  what 
particular  weight  to  give  to  any  portion  of  the  testimony. 
State  V.  Sullivan,  9  Mont.  174  (22  Pac.  1088);  2  Thorap.  Trials, 

§  2287. 

Second.  Upon  the  trial  the  counsel  for  the  state,  on  the 
cross-examination  of  the  appellant,  propounded  a  great  many 
questions  calculated  to  degrade  the  defendant  before  the  jury. 
The  inquiry  took  a  wide  and  varied  range.  She  was  asked  if 
she  had  not  rented  houses  for  purposes  of  prostitution  at  va- 
rious places  in  Montana;  whether  she  htid  not  been  "  a  kind  of 
a  backer  for  the  prostitution  of  female  persons  in  Missoula  and 
Hamilton;"  whether  she  had  not  had  a  fight  with  a  priest; 
Avhether  she  had  not  hugged  and  kissed  a  juryman  after  she 
had  been  found  not  guilty  of  some  misdemeanour  upon  one  oc- 
casion; whether  she  had  not  had  a  fight  with  a  French  pros- 
titute at  sometime;  and  whether,  at  another  time,  she  had  not 
"  run  a  young  gentleman  through  a  saloon; "  whether  she  had 
not  been  drunk  Avhen  she  was  in  jail;  and,  finally,  if  her  picture 
did  not  hang  in  the  Rogue's  Gallery  in  the  city  of  New  York. 

We  can  not  conceive  upon  what  theory  of  the  law  this  line 
of  testimony  was  allowed.  It  was  not  cross-examination  of 
what  apjiears  by  the  record  to  have  been  the  api^Uant's  evi- 
dence in  chief,  nor  did  it  legitimately  tend  to  impair  the  cred- 
ibility o(  the  defendant  as  a  witness.  Its  effect  must  have 
been  highly  injurious  and  prejudicial  to  the  defendant  in  the 
minds  of  the  jury.  Most  of  the  matters  involved  in  the  ques- 
tions were  wholly  remote  from  the  question  of  her  guilt  or 
innocence  of  the  crime  for  which  she  was  on  trial,  and  the  in- 
vestigation seems  to  have  drifted  to  a  rambling  assault  U])on 
the  general  character  of  th-?  defendant,  extending  not  only  to 
all  of  the  offenses  with  which  she  ma"  have  ever  been  at  any 
time  charged,  or  even  suspected,  whether  rightfully  or  not, 
but  likfiwise  to  cases  where  she  was  acquitted,  and  to  her 


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STATE  V.  GLEIM. 


55 


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infirmities  of  habit,  her  obscenity  of  speech,  and  general  deprav- 
ity of  life.  Such  an  examination  we  most  earnestly  disap- 
prove. It  was  oppressive  and  unjust,  no  matter  how  wicked 
or  degraded  the  defendant  may  have  been  by  common  report. 
We  find  a  well-considered  decision,  censuring  such  an  examina- 
tion of  a  defendant,  in  the  recent  case  of  People  v.  Un  Dong 
(Cal.),  39  Pac.  12. 

Third.  It  does  not  appear  whether  or  not  any  of  the  jurors 
who  sat  upon  the  trial  of  this  case  had  stated  upon  their  voir 
dire  that  they  had  fixed  opinions  as  to  the  guilt  of  Patrick 
Mason,  the  principal,  but  the  appellant's  counsel  implies  that 
they  did,  and  argues  the  point  in  his  brief.  A  juror  who  has 
formed  a  fixed  opinion  as  to  the  guilt  or  innocence  of  the  per- 
son charged  to  be  the  principal  offender  ought  not  to  sit  upon 
tlie  trial  of  the  person  charged  as  an  accessory.  Arnold  v. 
State,  9  Tex.  App.  435. 

Fourth.  We  see  no  error  in  refusing  to  permit  a  witness  to 
be  asked,  on  cross-examination,  for  the  puvpose  of  affecting 
her  credibility,  whether  or  not  she  is  addicted  to  the  mor- 
phine habit  [Stide  v.  White,  8  Wash.  230,  39  Pac.  If.O),  unless 
it  is  proposed  to  show  that  the  witness  was  under  the  influ- 
ence of  the  drug  at  the  time  the  events  happened  about  which 
she  testified,  or  unless  she  is  under  the  influence  of  morj)hine 
at  the  time  she  is  testifying,  or  unless  it  is  made  to  appear 
that  her  powers  of  recollection  are  impaired  by  the  habitual 
or  excessive  use  of  the  drug. 

Fifth.  The  court  defined  a  reasonable  doubt  in  substan- 
tially the  exact  language  of  the  Webster  case,  5  Cush.  320,  and 
which  was  expressly  approved  of  in  Territory  v.  2£c Andrews, 
3  Mont.  158.  As  part  of  the  definition,  however,  of  a  moral 
certainty,  the  court  charged  that  "  moral  certainty  ma\^  be 
said  to  bear  the  same  relation  to  matters  relating  to  human 
conduct  that  absolute  certainty  does  to  mathematical  sub- 
jects. It  is  a  state  of  impression  produced  by  facts  in  which 
a  reasonable  mind  feels  a  sort  of  coercion  or  necessity  to  act 
in  accordance  with  it.  It  is  not  only  what  men  in  general 
will  unhesitatingly  believe  to  bo  true,  but  what  they  will  be 
willing  to  act  upon."  If  the  definition  of  moral  certainty  is 
to  be  given  at  all,  "  to  be  thoroughly  impressive  it  should  be 
carried  one  step  further.  *  *  *  Is  the  juror  so  convinced 
by  the  evidence  of  the  truth  of  the  fact  sought  to  be  proved, 


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50 


AMERICAN  CRIMINAL  REPORTS. 


that  he  himself  would  venture  to  act  upon  such  conviction  in 
matters  of  the  highest  concern  and  importance  to  his  own  in- 
terests ?  If  this  be  so,  he  may  declare  himself  morally  cer- 
tain."    Territory  v.  McAndrews,  snjmt. 

The  condition  of  tlie  record  in  this  case  is  faulty.  The 
transcript  recites  that  the  instructions  given  by  the  court  are 
as  follows.  Then  follow  what,  doubtless,  were  the  instruc- 
tions read  to  the  jury.  At  the  conclusion  of  many  such  in- 
structions, however,  we  find  the  word  "  Given,"  and,  at  the 
conclusion  of  others,  "Given  as  modified,"  without  specifying 
what  the  instruction  given  was. 

The  error  of  the  court  in  charging,  as  it  did,  upon  circum- 
stantial evidence,  is  properly  presented,  and  upon  that  point 
the  case  is  reversed,  and  a  new  trial  ordered. 

Eeversed  and  remanded. 

Pkmbeeton,  C.  J.,  and  De  Witt,  J.,  concur. 

THOTE-Sufflcienq/ of  indictment. — An  indictment  charged  that  defend- 
ants, "  in  and  upon  one  K.,  did  then  and  there  unlawfully,  feloniously,  pur- 
posely, and  with  premeditated  malice,  make  an  assault,  and  him,  the  said  W. 
K.,  did  then  and  there  at  and  against  the  said  W.  K.,  did  feloniously,  pur- 
posely, and  with  premeditated  malice  shoot  a  certain  pistol  and  revolver 
then  and  there  loaded  with  gunpowder  and  leaden  halls;  which  they,  the 
said"  defendants,  "  then  and  there  in  hoth  their  hands  had  and  held,  with 
intent  then  and  there  and  thereby,  him.  the  said  W.  K.,  feloniously,  pur- 
posely, and  with  premeditated  malice  to  kill  and  murder,  contrary  to  the 
form  of  the  statute,"  etc.  Held,  that  the  indictment  was  sufficient  to 
charge  defendants  with  assault  with  intent  to  murder,  as  against  a  motion 
in  arrest  of  judgment.    Ellis  v.  State,  141  Ind.  357;  State  v.  Lynch,  88  Me.  385. 

Under  Cr.  Code,  Sec.  123,  requiring  a  brief  general  description  to  be  given 
of  an  ofifense  charged,  an  indictment  for  "willfully"  and  maliciously 
cutting  "another"  with  a  knife  with  intention  to  kill  (St.  Sec.  llf(6),  whicli 
merely  charges  the  crime  as  "  malicious  cutting  with  intent  to  kill,"  is  not 
fatally  defective  in  that  it  omits  the  words  "  willfully  "  and  "  another," 
where  the  statement  of  the  acts  constituting  the  olfense  shows  that  the  sub- 
ject of  the  cutting  was  a  human  being,  and  that  it  was  done  willfully,  etc. 
Qratz  V.  Com.,  96  Ky.  163. 

Objection  on  the  ground  that  the  offense  charged  in  an  indictment  or  in- 
formation differs  from  that  named  in  the  complaint  ujion  which  the  accused 
was  held  to  answer,  should  be  made  by  plea  in  abatement,  and  not  by 
motion  to  quash.    Whitner  v.  State,  46  Neb.  144. 

It  is  sufficient  if  the  words  used  in  an  indictment  to  charge  the  commis- 
sion of  a  statutory  olfense  are  more  than  the  eciuivalent  of  the  words  of 
the  statute,  provided  they  include  the  full  significations  of  the  statutory 
words.    State  v.  Lynch,  88  Me.  385. 

Under  an  indictment  under  Act  44  of  1800,  which  alleges  a  club  as  tho 


YARBROUGH  v.  STATE. 


57 


dangerous  weapon  used,  proof  that  a  pistol  was  so  employed  will  not  sus- 
tain a  conviction.    State  v.  Braxton  etal.,  47  La.  Ann.  158. 

The  exact  words  of  a  statute  defining  a  crime  need  not  be  used  in  tlie 
indictment  or  information  charging  it,  but  words  fairly  importing  the  same 
idea  are  sufficient.    Chandler  v.  State,  141  Ind.  106. 

Time  ivhen. — It  is  sufficient  that  an  indictment  shows  that  the  crime  was 
committed  before  tlie  indictment  was  found,  without  specifically  stating 
such  fact.     Gratz  v.  Com.,  96  Ky.  163. 


Yaubrouoii  v.  State. 

(105  Ala.  43.) 

Assault  with  Intent  to  Murder:  Impaneling  of  jury — IVifnesn — Evi- 
dence of  Credibility — Insanity — Opinion  Evidence — Degree  of  Proof — 
Instructions. 


3, 


1.  After  the  jury  is  complf>ted.  but  before  the  indictment  is  read  to  them, 

if  a  juror  states  that  he  is  sick  and  can  not  proceed  with  the  trial,  the 
court  may  excuse  him  and  complete  the  jury  from  the  venire  men,  or, 
if  the  venire  is  exhausted,  summon  a  qualified  juror  from  the  body  of 
the  county. 

2.  Testimony  that  witness  saw  defendant  after  his  ari'est,  and  recognized 

him  as  the  one  wliom  he  saw  commit  the  offense,  is  admissible. 

On  trial  for  assault  with  intent  to  murder,  where  it  ajjpeared  that  the 
prosecution  was  not  begun  for  several  months  after  the  commission  of 
the  oifense,  and  the  one  assaulted  testified  that  he  began  it  immediately 
after  being  informed  by  one  who  was  a  witness  on  the  trial,  that  she 
heard  defendant  and  another,  on  the  night  of  the  assault,  conspiring  to 
rob  him,  evidence  obtained  on  cross-examination  of  such  witness  that 
a  short  time  prior  to  giving  such  information,  she  had  been  arrested  on 
a  criminal  charge  preferred  by  defendant,  is  admissible  to  impair  the 
credibility  of  her  testimony  in  regard  to  the  conspiracy. 

To  rebut  such  evidence,  testimony  that  witness  had  given  the  same  in- 
formation to  the  prosecuting  witness  before  her  arrest,  on  the  charge 
preferred  by  defendant,  is  admissible. 

A  non-expert  witness,  who  has  known  a  person  familiarly  for  a  long 
time,  may  testify  that  such  person  is  sane,  but  can  not  give  an  opinion 
as  to  his  sanity  without  stating  the  uicts  on  which  the  opinion  is  based. 

A  defendant  jointly  indicted  with  another  is  not  entitled  to  a  joint  trial 
where  it  appeare  that  the  other  had  not  been  arrested  when  defendant 
was  put  on  trial,  and  that  the  retjuest  for  a  joint  trial  was  not  made 
until  after  the  organization  of  the  jury  was  begun. 

7.  Evidence  of  the  general  bad  character  of  a  witness  is  admissible,  in  addi- 

tion to  evidence  of  bad  reputation  for  truth  and  veracity,  to  discredit 
his  testimony. 

8.  Evidence  of  the  good  character  of  a  witness  several  years  before  the  trial, 


0. 


6, 


\i 


Hi 


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'■\'.: 


1! 


10, 


11 


08  AMERICAN  CRIMINAL  REPORTS. 

and  while  living  in  a  community  other  than  that  in  which  witnesses 
testified  tliat  she  had  a  bad  cliaracter,  is  admissible  to  rebut  such  testi- 
mony. 

9.  A  charge  that  "  every  single  fact  or  charge  against  defendant  tending  to 
prove  his  guilt  should  be  clearly  and  satisfactorily  proven,  or  else  the 
defendant  must  be  acquitted,"  was  properly  refused. 
A  charge  that  defendant  should  be  acquitted  if  "  any  uncertainty  what- 
ever "  exists  as  to  his  guilt  was  properly  refused. 

On  a  trial  under  two  counts,  one  charging  assault  with  intent  to  murder 
and  the  other  assault  with  intent  to  rob,  it  was  proper  to  refuse  to 
charge  that,  though  defendant  should  be  found  guilty  of  an  assault  with 
intent  to  rob,  he  must  be  acquitted  if  not  found  guilty  of  assault  with 
intent  to  murder. 

13.  A  charge  that  "a  reasonable  doubt  is  one  that  excludes  every  reason- 
able hypothesis  except  that  of  the  guilt  of  the  defendant,  and  only  when 
no  other  supposition  will  reasonably  account  for  all  the  conditions  of 
the  ca^e  can  the  conclusion  of  guilt  be  legitimately  adopted,"  was  prop- 
erly refused  as  misleading. 

13.  Counsel  should  not  be  allowed  to  read  to  the  jm-y  from  legal  text-books. 

Appeal  from  Criminal  Court,  JefPerson  County;  Hon.  S.  E. 
Greene,  Judge. 

Ed.  Yarbrough  was  convicted  of  assault  Avith  intent  to  mur- 
der, and  appeals.    Affirmed. 

After  the  organization  of  the  jury,  but  before  the  indict- 
ment was  read  to  them,  one  of  the  jurors  stated  to  the  court 
that  he  was  sick,  and  could  not  possibly  sit  on  the  jurv,  and 
asked  to  be  excused.    Upon  examination  by  the  court  the 
juror  stated  the  cause  of  his  suffering,  and  the  court  excused 
him,  against  the  objection  and  exception  of  the  defendant.    In 
obedience  to  the  order  of  the  court,  the  bailiff  summoned 
another  juror  on  the  vonire  of  the  week,  named  Brown,  whom 
the  defendant  challenged.    The  court  then  ordered  the  bailiff 
to  summon  one  Lawler,  the  only  remaining  juror  who  had 
not  been  challenged  by  the  State  or  the  defendant,  "and  who, 
the  jury  having  been  completed,  was  excused,  until  the  next 
morning."     The  defendant  objected  to  the  court's  making 
said  order,  and  duly  excepted  to  the  court's  overruling  his 
objection.    Defendant,  in  the  selection  of  the  jury,  havino- 
challenged  nine  jurors,  the  court  refused   to  allow'  him   to 
challenge  Lawler,  and  the  defendant  excepted.     After  the 
State  examined  several  of  its  witnesses,  the  court  adjourned 
until  the  next  morning.    On  the  court  reconvening,  tlie  juror 
Lawler  stated  that  he  was  sick,  and  unable  to  proceed  with 


an 


YARBROUGH  v.   STATE. 


69 


the  trial  of  the  cause,  and  asked  to  be  excused.  Upon  stating 
the  nature  of  his  sickness  the  court  excused  the  juror,  and  the 
defendant  excepted.  The  court  thereupon,  over  defendant's 
exception,  ordered  the  bailiff  to  summon  a  qualified  juror  to 
take, the  place  of  said  Lawler.  The  entire  venire  for  the  week 
having  been  exhausted,  the  bailiff  summoned  one  J.  G.  Ben- 
ton, and,  after  examining  him  as  to  his  qualifications,  the  court 
pronounced  him  competent.  The  defendant  claimed  the  right 
to  challenge  the  said  juror,  but  the  court  refused  to  allow  the 
defendant  to  challenge,  ho  having  already  challenged  nine 
jurors,  and  the  defendant  excepted.  The  defendant  then  ob- 
jected to  going  to  trial  before  the  jury  as  organized,  "  because 
said  jury  was  not  summoned,  impaneled,  and  sworn  as  required 
by  iaw."  The  court  overruled  this  objection,  and  the  defend- 
ant excepted.  The  defendant  then  moved  the  court  to  be 
discharged,  on  the  ground  that  he  had  alread}^  been  placed  in 
jeopardy,  and  duly  excepted  to  the  court's  overruling  his 
motion.  The  defendant  then  filed  a  plea  of  former  jeopardy, 
and  a  plea  of  former  acquittal,  setting  out  the  facts  as  stated 
above.  To  these  ])leas  the  State  demurred,  and,  upon  the 
court's  sustaining  the  demurrer  to  each  of  said  pleas,  the 
defendant  separately  excepted. 

The  state  introduced  one  J.  B.  Cole  as  a  witness,  who  testi- 
fied, in  substance,  that  some  time  between  the  first  and  fifteenth 
of  February  1891,  the  defendant  and  a  tall  black  man,  whom 
he  did  not  know,  came  into  his  store,  in  the  suburbs  of  the 
city  of  Birmingham,  about  eight  o'clock  at  night,  where  he  and 
his  daughter,  a  girl  twelve  years  old,  were  sitting  by  the 
stove;  that  as  the  witness  started  behind  the  counter,  and 
asked  the  defendant  and  his  companion  what  they  wanted, 
they  each  drew  their  pistols,  and  said  that  they  wanted  money; 
that,  as  the  witness  dodged  under  the  counter,  the  defendant 
fired  at  him,  his  head,  before  he  dodged,  being  directly  in  the 
ranfje  of  the  ball;  that  the  other  man  fired  into  the  ceilinsr, 
over  the  head  of  the  defendant,  and  did  not  fire  at  the  wit- 
ness at  all.  The  witness  identified  the  defendant  as  the  man, 
and  further  testified,  in  answer  to  the  question  of  the  state, 
"  that  he  saw  the  defendant  the  next  morning  pass  right  by 
his  store,"  walking  within  a  few  feet  of  the  witness.  The  de- 
fendant objected  to  the  question  eliciting  this  statement,  on 
the  ground  that  it  was  irrelevant  and  immaterial,  and  also 


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60 


AMERICAN  CRIMINAL  REPORTS. 


moved  the  court  to  exclude  the  answer  of  the  witness  upon 
the  same  ground.  The  court  overruled  the  objection  and 
motion,  and  the  defendant  separately  excepted  to  each  ruling. 
The  defendant's  counsel  asked  the  witness  "  if  it  was  not  a 
fact  that  he  had  taken  no  steps  to  have  defendant  arrested 
until  alter  Polly  Foster  told  him  that  she  had  heard  the  de- 
fendant and  two  other  men,  on  the  night  of  the  assault,  con- 
spiring to  rob  him;  and  if  Polly  did  not  make  this  statement 
a  day  or  two  before  defendant's  arrest,  and  a  day  or  two  after 
her  conviction  by  a  justice  of  the  peace,  for  an  assault  on  Bev- 
erly Hargrove's  sister,  Beverly  Hargrove  being  the  complain- 
ant in  that  prosecution  and  a  co-defendant  in  this."  The  Avit- 
ness  answered  that  such  was  a  fact.  On  re-direct  examination 
by  the  state,  this  witness  was  asked  in  rebuttal  "  if  Polly  Fos- 
ter had  not,  previous  to  the  time  immediately  preceding  the 
defen<lant's  arrest,  told  him,  in  another  conversation,  of  this 
conspiracy  between  the  defendant  and  Beverly  Hargrove  to 
rob  him."  The  defendant  objected  to  this  question  on  the 
ground  that  it  called  for  illegal  and  irrelevant  testimony.  The 
court  overruled  the  objection,  and  defendant  excepted.  Upon 
the  witness  answering  that  "  Polly  Foster  had  spoken  to  him 
several  times  about  the  alleged  conspiracy,  the  first  time  be- 
ing as  much  as  six  or  eight  months  before  defendant's  arrest," 
the  defendant  moved  to  exclude  the  answer,  and  duly  excepted 
to  the  court's  overruling  his  motion.  Polly  Foster,  a  witness 
for  the  state,  testified  that  in  the  fall  of  the  year,  about  8 
o'clock  on  the  night  Cole  was  assaulted,  she  heard  defendant 
and  anoth«>r  man  conspiring  to  rob  Mr.  Cole,  and  that  shortly 
after  she  heard  four  pistol  shots.  A  witness  for  the  state 
testified  that  he  knew  Polly  Foster,  and  knew  her  general 
character  in  the  community  where  she  lived,  and  that  it  was 
bad,  "and  stated  a  number  of  things  tending  to  show  her 
mental  unsoundness,  and  stated,  as  his  opinion,  that  Polly 
Foster  was  of  unsound  mind." 

Several  witnesses  for  the  defendant  testified  that,  in  their 
opinion,  Polly  Foster  was  of  unsound  mind.  The  defendant 
offered  to  read  in  evidence  to  the  jury  from  "  Wills  on  Cir- 
cumstantial Evidence,"  a  legal  text-book;  but,  upon  the  state's 
objection,  the  court  refused  to  allow  the  defendant  to  read 
from  said  book,  and  the  defendant  thereupon  excepted.  The 
state  introduced,  in  rebuttal,  one  Z.  T.  Hurst,  who  testified  that 


3     .,,. 


m 


YARBROUGH  v.  STATE. 


61 


he  knew  Polly  Foster,  and,  upon  being  asked  if  he  knew  her 
general  character,  he  said  that  he  did  not  know  her  general 
character  in  Birmingham,  "  but  he  knew  her  character  in  Gads- 
den, Alabama,  ten  or  twelve  years  ago,  and  that  it  was  good 
at  that  time;  and  that  he  had  known  her  for  sixteen  years." 
The  defendant  moved  to  exclude  this  testimony  of  the  witness, 
and  duly  excepted  to  the  court's  overruling  his  motion.  The 
witness  further  testified  that  he  saw  Polly  Foster  for  about 
two  years  once  every  week;  that,  during  that  time  she  washed 
for  him,  and  he  had  frequent  conversations  with  her.  The 
court  then  asked  the  witness  "  what  was  his  opinion  as  to  her 
mental  soundness  or  unsoundness  at  that  time."  The  defend- 
ant objected  to  this  question  upon  tlie  ground  that  the  witness 
was  not  shown  to  be  an  expert,  and  did  not  show  sufficient 
familiarity  with  the  witness  Foster's  condition  to  express  an 
opinion.  The  court  overruled  the  defendant's  objection; 
defendant  excepted;  and  the  withess  answered,  "  I  think  she 
was  weak-minded."  Pat  Walsh,  as  a  witness  for  tlie  state,  in 
rebuttal  testified  "that  he  had  known  Polly  Foster  for  sixteen 
or  seventeen  years,  and  that  he  saw  her  frequently  in  Gadsden, 
for  a  space  of  two  years,  about  nine  years  ago,  and  that  she 
Avas  employed  in  his  family  for  several  months  as  a  cook,  and 
he  had  frequent  conversations  with  her,  and  that  he  had  known 
her  in  Birmingham  for  seven  years,  and  that  she  had  lived  in 
his  family  here  for  four  years."  The  state  then  asked  this 
witness,  "  What  is  your  opinion  as  to  her  mental  condition  ?  " 
The  defendant  objected  to  this  question,  on  the  ground  that 
the  witness  was  not  qualified.  The  court  overruled  the  objec- 
tion and  defendant  excepted.  On  the  witness  answering  that 
he  considered  her  of  sound  mind,  the  defendant  moved  to 
exclude  his  answer,  and  excepted  to  the  court's  overruling  his 
motion. 

The  defendant  requested  the  court  to  give  the  following 
written  charges,  and  duly  excepted  to  the  court's  refusal  to 
give  each  of  them :  (1)  "  If  the  jurx'^  believe  the  evidence  they 
will  find  the  defendant  not  guilty."  (2)  "  If  the  jury  believe 
from  the  evidence  that  one  of  the  defendants  in  the  indictment 
was  guilty  of  an  assault  with  the  intent  to  murder,  and  that 
the  other  was  guilty  of  an  assault  with  the  intent  to  rob,  in 
that  event  the  defendant  could  not  be  convicted."  (3)  "  Every 
single  fact  or  charge  against  the  defendant  tending  to  prove 


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62 


AMERICAN  CRIMINAL  REPORTS. 


his  guilt,  or  Avhich  would  bo  necessary  in  regard  to  same, 
should  be  clearly  and  satisfactorily  proven;  and,  if  not  so 
proven,  defendant  should  bo  acquitted."  (4)  "  If  there  exists 
any  reasonable  or  substantial  doubt  of  the  guilt  of  the  defend- 
ant, he  is  entitled,  as  of  right,  to  be  acquitted;  and,  should  any 
uncertainty  whatever  exist  as  to  his  guilt,  he  should  be  ac- 
quitted." (5)  "  In  order  to  justify  the  inference  of  guilt  the 
inculpatory  facts  must  be  incompatible  with  the  innocence  of 
the  accused,  and  incapable  of  explanation  upon  any  other 
reuLtonable  hypothesis  than  that  of  defendant's  guilt."  (6)  "  If 
the  jury  should  be  of  the  opinion  that  defendant  was  in  the 
store  of  Mr.  Cole,  but  that  it  was  only  his  intention  to  rob, 
and  not  to  shoot  or  maim  or  kill,  Mr.  Cole,  but  to  frighten  him, 
that  he  would  not  be  guilty  of  an  assault  with  intent  to  mur- 
der, and  that  an  attempt  to  murder  implies  both  a  purpose 
and  an  actual  effort  to  carry  that  purpose  into  execution — de- 
fendant would  not  be  guilty."  (7)  "  A  reasonable  doubt  is 
one  that  excludes  every  reasonable  hypothesis  except  that  of 
the  guilt  of  the  defendant,  and  only  when  no  other  supposition 
will  reasonably  account  for  all  the  conditions  of  the  case  can 
the  conclusion  of  guilt  be  legitimately  adopted." 

B.  M.  Allen,  for  appellant. 

Wm.  G.  Fitts,  Attorney-General,  for  the  State. 

CoLEMAJT,  J.  The  defendant  and  one  Fnrgrove  were  jointly 
indicted.  There  were  two  counts,  one  charging  an  assault 
with  intent  to  murder,  the  other  with  intent  to  rob.  The 
defendant  was  tried  alone  and  sentenced  for  an  assault  with 
intent  to  murder. 

In  the  case  of  Hawes  v.  State,  8S  Ala.  37,  it  appears  that 
after  the  twelve  jurors  were  selected  and  sworn  to  try  the 
case,  and  before  the  indictment  was  read  to  them,  G,  13.  Gor- 
don, one  of  the  jurors,  was  excused,  because  of  the  sickness  of 
his  wife.  After  a  full  consideration  of  all  the  authorities,  it 
was  held  that  the  action  of  the  court  was  justified  by  the 
necessities  of  the  case,  and  his  ruling  was  not  available  to  the 
defendant.  This  authority  is  decisive  of  all  the  questions 
growing  out  of  the  impaneling  of  the  jury  and  the  judgment 
of  the  court  sustaining  a  demurrer  to  the  plea  of  former 
acquittal. 

In  the  cast;  of  State  v.  Beavers,  103  Ala.  36,  it  was  held  that 


ing 


YARBROUGH  v.  STATE. 


03 


a  witness  might  testify  that  he  saw  and  recognized  the  defend- 
ant alter  his  arrest,  as  the  same  persuu  whom  he  saw  commit 
the  offense.  There  was  no  error  in  applying  the  same  rule  to 
the  case  at  bar.  It  was  also  com|)etent  to  prove  that  the 
defendant  was  seen  in  the  vicinity  where  the  offense  occurred, 
on  the  morning  after  its  commission.  The  testimony  showed 
that  the  witness  Cole,  who  was  assaulted,  had  the  defendant 
arrested  several  months  after  the  assault  had  been  made. 

This  witness  had  testified  that  he  knew  and  identified  the 
defendant  at  the  time  of  the  assault.  On  his  cross-examina- 
tion he  was  asked  if  he  did  not  sue  out  the  warrant  a  day  or 
two  after  he  was  told  by  one  Polly  Foster  that  she  overheard 
the  defendant  and  one  Hargrove  conspire  to  rob  the  witness 
Cole.  The  witness  Polly  Foster,  after  testifying  in  behalf  of 
the  state  to  the  conspiracy,  on  her  cross-examination  was 
asked  if  the  defendants  did  not  have  her  arrested  on  a  crimi- 
nal charge,  and,  one  or  two  days  afterward,  if  she  did  not  in- 
form Mr.  Cole  of  the  alleged  conspiracy  of  the  defendants  to 
rob  liim,  and  that,  immediately  thereafter,  Mr.  Cole  instituted 
the  prosecution  against  the  defendant.  The  evidence  thus 
elicited  on  cross-examination  by  the  defendant  was  competent 
as  tending  to  affect  the  credibility  of  the  witnesses  for  the 
prosecution,  and  the  question  is  presented  whether  it  was  com- 
petent, in  rebuttal,  to  show  that  the  witness  Polly  Foster  had 
made  the  same  statement  to  Cole  and  to  others  before  her 
arrest  as  she  made  subsequent  to  it.  "We  are  of  opinion  that 
such  evidence  is  competent.  The  distinction  must  be  kept  in 
mind  between  such  evidence  and  its  purpose;  and,  when  a  wit- 
ness attempts  to  corroborate  his  own  evidence  by  proof  of  hav- 
in<r  made  similar  statements  to  others,  the  latter  are  inadmis- 
sible.  it  is  mere  hearsay  and  not  competent  as  tending  to 
prove  a  fact;  but,  when  it  is  sought  to  discredit  the  witness 
by  attributing  his  or  her  testimon}'  to  some  act  on  the  part  of 
the  person  testified  against,  calculated  to  excite  unfriendly 
feelings  in  the  witness,  in  rebuttal  of  the  inference  to  be 
drawn  from  such  act  it  may  be  shown  that  the  witness  made 
the  same  statement  prior  to  the  time  when  the  proven  act 
occurred.  This  evidence  could  not  be  considered  as  original 
or  corroborating  evidence  of  the  truth  of  the  fact  testified  to, 
but  purely  in  rebut ial  of  the  inference  that  the  testimony 
was  manufactured  or  the  result  of  the  unfriendly  act. 


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64 


AMERICAN  CRIMINAL  REPORTS. 


Tho  record  is  not  very  clear  as  to  the  compotency  of  all 
the  witnesses  to  testify  as  to  the  soundness  of  mind  of  Polly 
Foster.  In  our  opinion,  if  there  was  any  error,  it  was  for  tho 
advantage  of  the  defendant.  In  the  case  of  Bumey  v.  Torrey, 
l(tO  Ala.  157,  it  was  said  that,  sanity  being  the  normal  con- 
dition of  mankind,  a  non-expert  who  had  enjoyed  proper  op- 
portunities, from  a  long  and  familiar  acquaintance,  to  form  a 
correct  judgment  as  to  the  mental  condition  of  another,  was 
competent  to  testify  that  the  person  jiossessed  a  sane  mind, 
but  that  a  non-expert  was  not  competent  to  give  an  opinion  as 
to  the  insanity  of  another  without  stating  the  facts  and  cir- 
cumstances upon  which  he  based  his  opinion. 

There  is  nothing  in  the  point  that  the  defendant  demanded 
that  he  bo  tried  jointly  with  Hargrove,  who  was  jointly 
indicted.  The  facts  showed  that  Hargrove  had  not  been 
arrested  at  the  time  when  the  defendant  was  put  upon  his 
trial,  and  the  demand  for  a  joint  trial  was  not  made  until  the 
organization  of  tlie  jury  had  been  entered  upon.  Wo  held, 
also,  in  the  case  of  Woodley  v.  State,  103  Ala.  23,  that  the 
proper  construction  of  the  statute  empowered  each  defendant 
to  demand  a  severance,  and  not  a  joint  trial. 

In  regard  to  the  question  to  be  propounded  to  a  witness 
examined  as  to  chara'cter,  not  as  affecting  the  fact  of  the  guilt 
or  innocence  of  a  defendant,  but  the  credibility  of  a  witness 
who  has  testified,  it  is  proper  to  inquire  as  to  his  general 
character  for  truth  and  veracity;  but  the  inquiry  is  not  limited 
to  general  character  for  truth  and  veracity.  It  is  permissible 
to  show  general  bad  character,  and  that  the  party  is  not  en- 
titled to  credibility  because  of  his  general  bad  character 
although  it  may  not  be  notoriously  bad  for  truth  and  veracitv. 
This  proposition  rests  upon  the  well-recognized  fact  that  the 
evidence  of  a  person  of  notorious  bad  character  is  not  entitled 
to  the  same  weight  as  one  whose  life  and  conduct  com- 
mand the  confidence  of  the  public.  Ward  v.  State,  28  Ala.  53; 
Mclnerny  v.  Jrvin,  90  Ala.  275;  Mitchell  v.  State,  94  Ala.  68.' 
The  court  ruled  in  accordance  with  these  principles. 

There  was  no  error  in  excluding  text-books  as  evidence. 

The  court  did  not  err  in  receiving  evidence  of  the  good 
character  of  the  witness  many  years  preceding  the  trial,  and 
when  the  witness  whose  character  was  attacked  lived  at  Gads- 
den.   "We  considered  this  question  in  the  case  of  Jones  v  State 
104  Ala.  30.  '         ' 


YARBROUGU  v.   STATE. 


66 


Ilargrovo  was  not  on  trial,  and  the  jury  were  not  called  on 
to  (Ictcnnine  his  offense,  or  whether  he  was  guilty  of  any 
oH'oiiso,  in  order  to  arrive  at  a  proper  conclusion  as  to  the 
guilt  of  the  defendant. 

The  third  charge  requested  for  the  defendant  asserts  that 
"every  single  fact  or  charge  against  the  defendant  tending  to 
prove  his  guilt,  should  be  clearly  and  satisfactorily  proven,  or 
else  the  defendant  must  be  acquitted."  Although  there  may 
have  been  many  facts  tending  to  show  his  guilt  not  clearly  and 
satisfactorily  proven,  yet  there  may  have  been  sufficient  other 
evidence  to  satisfy  the  jury,  beyond  a  reasonable  doubt,  of  the 
guilt  of  the  defendant.    This  charge  was  properly  refused. 

The  fourth  charge  requested,  exacts  too  high  a  measure  of 
proof.  It  asserts  tliat,  if  "  any  uncertainty  whatever  exist," 
the  defendant  should  be  acquitted. 

The  fifth  charge  is  objectionjible  for  the  same  reason.  It 
may  be  that  some  of  the  inculpatory  facts  are  capable  of  ex- 
planation, while  others  may  not  be.  If  there  was  inculpatory 
evidence  sufficient  to  satisfy  the  jury,  beyond  a  reasonable 
doubt,  of  the  guilt  of  the  defendant,  which  was  incapable  of 
reasonable  explanation  consistent  with  his  innocence,  it  was 
the  duty  of  the  jury  to  convict,  notwithstanding  some  facts  of 
a  criminal  character  may  have  been  capable  of  explanation 
consistent  with  his  innocence. 

The  sixth  charge  is  objectionable  for  several  reasons.  It 
asserts  in  effect,  that,  although  the  facts  might  show  that  the 
defendant  was  guilty  of  an  assault  with  intent  to  rob,  he  must 
be  acquitted  if  the  jury  should  believe  he  was  not  guilty  of  an 
assault  with  intent  to  murder.  If  the  predicate  had  been  cor- 
rect, the  proper  conclusion  would  have  been  an  acquittal  of  an 
assault  with  intent  to  murder,  and  not  an  acquittal  generally. 
This  charge  was  objectionable  for  the  further  reason  that  it 
was  argumentative  and  misleading.  The  defendant  may  have 
been  in  the  store,  and  at  one  time  his  only  intent  may  have 
been  to  frighten  and  rob,  but  it  would  not  follow  that  the  in- 
tent to  murder  did  not  succeed  the  first  intent,  and  did  not 
exist  at  the  time  the  pistol  was  fired. 

The  seventh  charge  requested  is  confused  and  misleading. 
The  use  of  the  word  "  supposition,"  in  a  charge,  of  itself  has  a 
tendency  to  excite  an  imaginary  or  speculative  inquiry,  and  is 
not  permissible  unless  the  context  shows  that  it  is  a  supposi- 


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tion  or  hypothesis  reasonably  arising  from  or  suggestoa  by 
the  facts  in  evidence.  Garrett  v.  State,  97  Ala.  18:  McGehee 
V.  State,  52  Ala.  224;  Cohm  v.  State,  50  Ala.  112.  The  first 
cliiuse  of  the  charge,  to  wit,  "  A  reasonable  doubt  is  one  that 
excludes  any  reasonable  hypothesis  except  that  of  the  guilt  of 
the  defendant,"  no  doubt  asserts  a  proposition  of  law  which 
should  be  given;  but  when  this  proposition  is  followed  as  a 
part  of  the  same  charge  with  the  further  statement,  "  and  only 
when  no  other  supposition  will  reasonably  account  for  all  the 
conditions  of  the  case  can  the  conclusion  of  guilt  be  legiti- 
mately adopted,"  the  meaning  becomes  obscure.  What  is 
meant  by  "reasonably  accounting  for  all  the  conditions  of  the 
case  "  is  not  plain  nor  readily  understood.  Charges  should  be 
expressed  in  plain,  simple  language.  The  juries  have  been 
taught,  and  are  fully  advised  as  to  the  degree  of  conviction  of 
mind  necessary  to  constitute  satisfaction  beyond  a  reasonable 
doubt.  The  courts  ought  to,  and  we  have  no  doubt,  when  re- 
quested, always  do,  instruct  the  jury  that,  before  they  can 
convict  in  a  criminal  case,  tlie  evidence  must  satisfy  thom 
beyond  a  reasonable  doubt  of  tlie  defendant's  guilt,  and  when 
this  principle  is  couched  in  languagg  that  misleads  and  de- 
ceives the  court  itself,  it  must  certainly  be  calculated  to 
mislead  and  confuse  the  average  juror.  Tiiere  can  be  no  re- 
versible error  in  refusing  such  charges. 

The  evidence  in  this  case,  as  it  appears  in  the  record,  is  not 
so  conclusive  of  the  defendant's  guilt  as  to  be  entirely  satis- 
factory; but  we  are  confined  to  reviewing  the  rulings  of  the 
trial  court,  and  in  these  we  find  no  error.  The  weight  and 
credibility  of  the  evidence  were  for  the  jury.     Affirmed. 

"^OT^,— Self-defense. — Where  a  i  lea  of  self-defense  is  based  on  the  fact 
that  the  person  attempting  to  arrest  defendant  for  a  misdemeanor  was  not 
an  officer,  and  tlie  evidence  autliorizes  tlie  court  to  determine  as  a  matter 
of  law  that  the  person  was  an  officer,  error  in  submitting  such  question  to 
the  jury  is  not  prejudicial  to  defendant.    Gratz  v.  Com.,  98  Ky.  163. 

On  a  trial  for  felonious  assault,  where  there  was  evidence  that  defendant 
shot  without  provocation,  a  charge  that  defendant  would  be  justified  in 
using  a  pistol  if  one  was  advancing  on  him  with  a  knife,  and  "  defendant 
wiia  in  imminent  danger  of  losing  his  life,  or  of  great  bodily  harm,"  was 
properly  refused.    Ellis  v.  St  ^te,  lOoAla.  72. 

Not  hound  to  elect.— On  a  prosecution  for  an  aasault  in  which  three  shots 
were  fired  by  the  accused  in  quick  succession,  the  state  can  not  i>8  required 
to  elect  for  which  of  the  shots  it  will  prosecute.    Id. 


COMMONWEALTH  v.  31UKi^HY. 


67 


Commonwealth  v.  Murphy. 

Same  v.  Enos. 

(165  Mass.  66.) 

Assault  with  Intent  to  Commit  Rape  :    Effect  of  consent— Federal  con- 
stitution— Cruel  and  unuaual  punishment— Knowledge  of  age— Intent. 

1.  Under  St.  1893,  c.  406,  one  who  hiis  carnal  knowledge  of  a  girl  under  six- 

teen years  of  age  is  guilty  of  rape,  even  if  she  gives  her  full  consent. 

2.  Const.  U.  S.  art.  8,  prohibiting  cruel  and  unusual  punishments,  has  no 

application  to  crimes  against  the  laws  of  a  state. 

3.  St.  1893,  c.  466,  subjecting  one  wiio  has  carnal  knowledge  of  a  girl  of  six- 

teen to  the  possibility  of  imprisonment  for  life,  does  not  inflict  a  cruel 
and  unusual  punisiiment. 

4.  Under  St.  1893,  c.  466,  it  is  not  necessary  to  show  that  one  who  had  car- 

nal knowledge  of  a  girl  under  sixteen  knew,  or  had  good  reason  to 
believe,  that  she  was  under  that  age. 

5.  One  who  intentionally  commits  a  crime  is  criminally  responsible  for  the 

consequences,  if  the  act  proves  dififerent  from  that  which  he  intended. 

Exceptions  from  Superior  Court,  Bristol  County;  Henry  K, 
liraley,  Judge. 

Daniel  F.  Murphy  and  E.  Edward  Enos  were  separately 
convicted  under  St.  1S93,  c.  400,  providing  that  whoever  car- 
nally knows  and  abuses  a  female  child  under  the  age  of  six- 
teen years  shall  be  punislied  with  imprisonment  for  life,  etc. 
Defendants  excepted.     Exceptions  overruled. 

Andrew  J.  Jennings,  District  Attorney,  for  the  Common- 
wealth. 

//.  J.  Fuller,  for  defendant  in  first  case. 

F.  V.  Fuller,  {11.  J.  Fuller  with  him,)  for  defendant  in  second 
case. 

Knowlton,  J.  These  cases  may  be  considered  together,  as 
substantially  the  same  questions  are  raised  in  both  of  them. 

Under  Pub.  St.  c.  202,  §§  27,  28,  the  question  whether  an  in- 
dictment for  an  assault  with  an  intent  to  commit  rape  upon  a 
female  child  under  the  age  of  ten  years  can  be  maintained,  if 
the  child  consents  to  what  is  done,  wat:  very  fully  considered 
in  Com.  v.  Roosnell,  143  Mass.  32,  and  decided  in  the  affirma- 
tive. This  case  must  be  deemed  to  have  settled  the  law  in 
this  commonwealth  in  accordance  with  the  weight  of  judicial 


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AMERICAN  CRIMINAL  REPORTS, 


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opinion,  although  there  is  some  conflict  of  authority  in  other 
jurisdictions. 

The  several  acts  in  amendment  of  section  27,  above  cited, 
Avhich  raise  the  age  of  consent  by  girls  to  carnal  connection, 
do  not  assume  to  change  the  nature  o;'  an  offense  to  which 
they  relate.  One  who  unlawfully,  carnally,  knows  and  abuses 
a  female  child  under  the  age  of  sixteei  years,  is  guilty  of  the 
same  crime,  under  St.  1893,  c.  466,  as  one  who  committed  the 
offense  upon  a  child  under  the  age  of  ten  years,  <vhen  Pub.  St. 
c.  202,  §  27,  were  in  force.  St.  1886,  c.  305;  St.  1888,  c.  3)H; 
St.  1S93,  c.  iQQ.  There  is  no  doubt  of  the  intention  of  the 
Legislature  to  treat  the  crime  of  having  carnal  connection  with 
a  girl  under  the  age  of  sixteen  years  as  rape,  even  if  she  gives 
her  full  consent  so  far  as  she  is  capable  of  consenting. 

The  defendants  contend  that  the  statute  last  cited  is  in  con- 
Rict  with  Article  8  of  the  Amendments  to  the  Constitution  of 
the  United  States,  and  of  Article  26  of  our  Declaration  of  Rights, 
because  it  provides  for  the  infliction  of  a  cruel  and  unusual 
punishment. 

The  first  of  these  articles  has  no  application  to  crimes 
against  the  laws  of  a  state.  Com.  v.  IJitcAhxjs,  5  Gray,  482. 
Without  implying  that  article  26  of  our  Declaration  of  Rights 
is  applicable  to  the  statute  before  us,  it  is  clear  that  the  punish- 
ment prescribed  is  not  cruel  or  unusual  in  kind. 

There  is  some  ground  for  the  contention  that  the  statute  is 
a  departure  from  the  principles  which  lie  at  the  foundation  of 
our  ancient  law  in  regard  to  rape,  and  which  justify  the  treat- 
ment of  it  as  one  of  the  most  heinous  c  imes  that  can  be  com- 
mitted. [The  legislation  is  different  in  character  from  St,  1886, 
c.  329,  and  St.  1888,  c.  311,  which  were  enacted  for  the  punish- 
ment and  prevention  of  seduction.  But  whatever  we  mav 
think  of  the  policy  of  a  statute  that  treats  a  girl  of  fifteen 
years  and  eleven  months  old,  however  mature  she  may  be  in 
body  and  mind,  as  if  she  were  incapable  of  committing  the 
crime  of  fornication,  and  subjects  a  boy  of  the  same  age,  with 
whom  she  joins  in  sexual  intercourse,  to  a  possibility  of  the 
same  punishment  as  if  he  were  guilty  of  murder  in  the  second 
degree,  the  Legislature  is  ordinarily  the  judge  of  the  expe- 
diency of  creating  new  crimes,  and  of  prescribing  penalties, 
whether  light  or  severe,  for  prohibited  acts.  We  can  not  say 
that  the  punishment  prescribed  for  this  offense,  when  the  girl 


iiill  ^t. 


IM.   .'::i 


COMMONWEALTH  v.   MURPHY. 


69 


is  nearly  sixteen  years  of  age,  and  voluntarily  participates  in 
it,  is  beyond  the  constitutional  power  of  the  Legislature  to 
inflict. 

Tlie  presiding  justice  was  asked  to  instruct  the  jury  that, 
ss  the  defendant  knew,  or  had  good  reason  to  believe, 
thai  the  girl  was  under  sixteen  years  of  age,  he  could  not  be 
convicted.  IIow  far  a  .  istake  of  fact  in  regard  to  the  nature 
of  his  act  may  be  availed  of  by  a  defendant  in  a  criminal  case 
is  someti :ru!s  a  difficult  question  to  answer.  In  general  it 
may  be  said  that  there  must  be  tnalus  anhnus,  or  a  criminal  in- 
tent. But  there  is  a  large  chiss  of  cases  in  which,  on  grounds  of 
public  policy,  certain  acts  are  made  punishable  witliout  proof 
that  the  defendant  understands  the  facts  that  give  character  to 
his  act. 

In  such  cases  it  is  deemed  best  to  require  everybody, 
at  his  peril,  to  ascertain  whether  his  act  comes  within  the 
legislative  prohibition.  Among  these  cases  are  prosecutions  for 
the  unlawful  sale  of  intoxicating  liquor,  for  selling  adulterated 
milk,  for  unlawfully  selling  naphtha,  for  admitting  a  minor  to 
a  billiard  room,  and  the  like.  Com.  v.  Saver i/,  145  Mass.  212; 
Com.  V.  Farren,  9  Allen,  4S9;  Com.  v.  Wentworih,  IIS  Mass. 
441;  Com.  v.  Emmons,  98  Mass.  6;  Com.  v.  liuymond,  97  Mass. 
5(57;  Co?n.  v.  Connelly,  163  Mass.  539.  Considering  the  nature 
of  the  offensa,  the  purpose  to  be  accomplished,  the  practical 
methods  available  for  the  enforcement  of  the  law,  and  such 
other  matters  as  throw  light  upon  the  meaning  of  the  lan- 
guage, the  question  in  interpreting  a  criminal  statute  is  whether 
the  intention  of  the  Legislature  was  to  make  knowledge  of  the 
facts  an  essential  element  of  the  offense,  or  to  put  upon  every 
one  the  burden  of  finding  out  whether  his  contemplated  act 
is  prohibited,  and  of  refraining  from  it  if  it  is.  The  applica- 
tion of  this  rule  to  crimes  like  bigamy  and  adultery  has  led  to 
some  conflict  of  authority.  Com.  v.  Jfaijden,  163  Mass.  457. 
Beg.  V.  ToUon,  23  Q.  B.  Div.  168.  See  Com.  v.  Presby,  14 
Gray,  65. 

The  defendants  in  the  present  cases  knew  that  they  were 
violating  the  law.  Their  intended  crime  was  fornication,  at  the 
least.  It  is  a  familiar  rule  that,  if  one  intentionally  commits  a 
crime,  he  is  responsible  criminally  for  the  consequences  of  his 
act,  if  the  oifense  proves  to  be  different  from  that  which  he 


1     ,t 


5T  •>■.■ 


70 


AMERICAN  CRIMINiVL  REPORTS. 


intended.    See  Jieff.  v.  Prince,  L.  R.  2  Crown  Cas.  154,  175. 
Exceptions  overruled. 

THoTK.—Ititent,  question  for  jurj/.— In  a  prosecution  for  assault  with  in- 
tent to  commit  rape,  tlio  intent  witli  wliich  the  assault  was  committed  is  a 
question  for  tiie  jury.     People  v.  Webster,  111  Cal.  381. 

Age  of  consent— Question  of  fact.— On  t\\G  trial  of  a  deftndant  for  ,is- 
sault  with  intent  to  commit  rape,  it  is  error  for  the  court  to  ussuine,  in  its 
rulings  or  instructions,  that  the  prosecutrix  was  under  th  j  age  of  con- 
sent.   Id. 

Instructions. — In  instructing  the  jury  as  to  an  assault  upon  the  prosecu- 
trix with  an  intent  to  commit  a  rape,  tiie  coiut  stilted  that  if  the  defendant 
"  caught  hold  of  her,  and  used  force  or  violence  and  threats,  with  intent 
to  carnally  know  her,  then,  in  that  case,  you  should  find  him  guilty  of  an 
aasault  with  intent  to  commit  a  raiK',  and  in  that  case  it  would  make  no 
difference  that  he  might  have  failed  to  accomplish  his  purpose."  Under 
the  circumstances  of  the  case,  held,  not  to  he  erroneous.  State  V.  Kendall, 
56  Kas.  238. 

Complaint  of  the  injur;/. — ^The  state  may  only  infjuireof  the  prosecu- 
trix whether  she  made  complaint  of  the  injury,  and  when,  and  to  whom, 
but  not  as  to  the  particular  facts  which  sIkj  stated;  still  the  defense,  in 
cross-examination,  may  inquire  as  to  such  particular  facts.  Wood  v.  State, 
46  Neb.  58. 

Under  age  of  consent— Assault  upon  a  girl  under  the  statutory  age  of 
consent,  with  intent  to  commit  a  nii>e,  whct'er  the  girl  consented  or  re- 
sisted is  immaterial;  and  to  constitute  the  olfeiise  it  is,  thensforo,  unnetres- 
siiry  to  jirove  that  the  defendant  intended  to  use  force,  if  necessary,  t« 
overcome  her  resistance.    Id. 

Evidence  held  in-w^CT'eni.— Evidence  that  defendant,  while  in  a  sitting 
position  on  a  path  leading  from  prosecutrix's  house  to  a  well,  solicited  her 
as  she  passed  him  on  her  way  to  the  well  to  have  sexual  intercourse  with 
him;  that,  on  her  reply  that  she  was  not  that  kind  of  a  woman,  ho  followed 
her  with  liis  privati's  ex[K)sed,  to  a  fence  near  the  well,  hut  did  not  go  be- 
yond it;  and  that  he  was  never  nearer  iier  than  twelve  fi^et— is  insutlicient 
to  show  an  a-ssjiult  with  intent  to  rape.    State  v.  Jeffrn/s.  1 17  N.  C.  74!5. 

Iriforwnti(ni.— In  an  information  it  was  charged  tliat  the  defendant  did 
"  unlawfully,  feloniously  and  carnally  know  and  fontihiy  ravish  "  a  female 
und(T  the  age  of  eighteen  years.  The  defendant,  assuming  that  two  of- 
fenses were  chargwl  in  the  information,  moved  the  court  to  require  the 
state  to  elect  upon  which  offense  it  would  stiind  for  trial.  At  the  time  of 
the  filing  of  the  motion  to  elect  and  of  the  argument  thereon,  tlie  defendant 
was  not  actually  present  in  court.  The  motion  was  overruled,  and  a  con- 
viction followed.  Held,  that  the  absence  of  the  defendant  during  the  filing 
and  argument  of  the  motion  is  not  fatal  to  the  judgment  of  conviction. 
State  V.  Kendall,  56  Kas.  238. 


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STATE  V.  BARDWELL. 


71 


State  v.  Bard  well. 

(72  Miss.  535.) 

Banking  Laws:    Natumal  hanks— lieceiving  dcp  sits  ti^hile  insolrent — In- 
dictment— Jurisdiction, 

1.  An  indictinont,  under  a  stutute  declaring  it  an  offense  if  an  officer  of  a 

bank  shall  receive  a  deposit,  "  knowing,  or  having  good  reason  to  belii've, 
the  establishment  to  be  insolvent,"  is  not  sutHcient  vvl>ere  it  does  not 
allege  the  insolvency,  but  merely  follows  the  words  of  the  statute,  as 
there  would  be  no  offense  if  the  bank  was  not  insolvent,  though  the 
ofiicer  believed  it  was. 

2.  A  state  court  hjis  jurisdiction  of  an  indictment  against  an  officer  of  a 

national  bank  for  receiving  a  deposit  when  the  bank  was  insolvent, 
this  not  being  made  an  offense  by  the  laws  of  the  United  States. 

Appeal  from  Circuit  Court,  Oktibbeha  Count}';  Newnan 
Cayce,  Judge. 

A  demurrer  was  sustained  to  an  indictment  against  W.  II. 
Bardwell,  and  tiio  state  appeals.    Alliniied. 

Franh  JohnMon,  Attorney-(ieneral,for  appellant. 
2\  B.  Carroll  and  Orr  ci'  Orr,  for  appellee. 

CooPKK,  C.  J.  The  appellant  was  indicted  in  the  Circuit 
Court  of  Oktibbeha  CN>unty,  for  that,  being  cashier  of  the  First 
IVational  liank  of  Starkville,  he  did,  on  the  3d  day  of  July, 
lsi)3,  receive  from  one  James  Foster  a  certain  sum  of  money  on 
deposit,  "then  and  there  knowing,  and  having  good  reason  to 
believe,  that  said  bank  was  then  and  there  insolvent,  without 
then  and  there,  or  at  any  othe?  time,  ])reviously  informing 
said  James  Foster  of  such  insolvent  condition  of  said  bank." 
The  defendant  demurred  to  the  indictment,  and  his  demurrer 
was  sustaii\ed,  and  tiie  indictment  quashed.     The  state  apj)eals. 

The  demurrer  contaiiuid  many  causes,  but  those  relied  on 
by  the  appellee  here,  are:  1.  That  the  indictment  does  not 
aver  that  the  bank  was  in  fa(!t  insolvent  wlu^n  the  deposit 
was  received.  2.  That  the  indictment  shows  the  defendant  to 
have  been  an  olKcer  of  a  national  bank,  organized  under  the 
act  of  congress;  that  these  banks  are  govcrmiifiital  agencies 
of  the  United  States,  and  are  tiienifore  not  subjected  to  regula- 
tion or  control  by  state  authority. 

The  statute  under  which  the  indictment  was  found,  is  as  fol- 


Xk 


,  f-" 


5  .11 


?  ->'s 


72 


AMERICAN  CRIMINAL  REPORTS. 


lows:  "If  the  president,  the  manager,  cashier,  teller,  assist- 
ant clerk,  or  other  employe  or  agent  of  any  bank  or  banker's 
office,  or  establishment,  conducting  the  business  of  receiving 
on  deposit  the  nu>ney  or  other  valuable  things  of  other  ])er- 
sons  shall  remove  or  secrete  or  conceal  the  assets  or  effects  of 
such  establishment  for  the  purpose  of  defrauding  any  of  the 
creditors  of  tlu  establishment,  or  shall  receive  any  deposit 
knowing,  or  having  good  reason  to  believe,  the  establishment 
to  be  insolvent,  without  informing  the  depositor  of  such  con- 
dition, on  conviction,  he  shall  be  imprisoned  in  the  peniten- 
tiary not  longer  than  five  years."  Code  1892,  §  1089.  The 
purpose  of  the  statute  is  to  protect  depositors  against  the  acts 
of  officers  and  employes  of  establishments,  first,  in  withholding 
bv  abstracting  or  concealing  the  assets,  so  that  they  may  not 
be  subject  to  the  demands  of  creditors;  and  second,  in  receiv- 
ing deposits  while  the  establishment  is  insolvent,  and  such 
condition  is  known  to  the  officer,  or  such  facts  are  known  as 
to  give  him  good  reason  to  believe  the  condition  of  actual 
insolvency  to  exist. 

The  district  attorney,  in  preparing  the  indictment,  has  fol- 
lowed the  precise  language  of  the  statute.  What  is  charged 
may  be  true,  and  yet  the  defendant  may  not  be  guilty  of  the 
offense  contemplated.  The  condition  of.  the  bank  when  the 
deposit  was  received,  may  have  been  such  that  the  defendant 
then  had  good  reason  to  believe  it  to  be  insolvent,  and  yet,  in 
tact,  it  may  not  have  been  so.  It  is  the  receipt  of  the  de|)osit 
into  an  actually  insolvent  establishment  by  an  officer  or  agent 
knowing,  or  having  good  reason  to  believe,  the  fact  of  such 
real  insolvency,  that  is  made  criminal  by  the  law,  and  this 
essential  fact  should  be  averred  in  indictments  under  the  statute. 
Jeose  V.  State,  28  Miss.,  100;  Harr'nKjton  v.  State,  54  Miss.,  4i>(); 
SiiU'mm  V.  State,  67  ]\Iiss.,  34C;  h'aio/ft  v.  State,  70  Miss.,  739. 

The  contention  of  counsel  for  the  defendant  that  defendant 
is  not  punishable  under  the  a!)ove  statute,  because  the  act  nuulo 
criminal  by  it  was  committed  by  him,  if  committed  at  all,  as 
an  officer  of  a  national  bank,  over  whom  the  United  States 
alone  has  jurisdiction  to  punish,  is  not  maintainable.  Section 
5209  of  the  revised  statutes  of  the  United  States  provides  that 
"every  president,  director,  cashier,  teller,  clerk,  or  agent  of 
any  association,  Avho  embezzles,  abstracts,  or  wilfully  niisai)- 
plies  any  of  the  moneys,  funds,  or  credits  of  the  association; 


STATE  V.  BARDWELL. 


73 


or  who,  without  authority  from  the  directors,  issues  or  puts  in 
circulation  any  of  the  notes  of  the  ussooiation,  or  who  without 
such  authority,  issut  s  or  puts  forth  a.\v  certificates  of  deposit, 
draws  any  order  or  bill  of  exchange,  i.iukes  any  acceptance, 
assigns  any  note,  bond,  draft,  bill  of  excliange,  mortgage, 
judgment,  or  decree,  or  who  makes  any  false  entry  in  any 
book,  report,  or  statement  of  the  association,  with  intent  in 
either  case  to  injure  or  defraud  the  association,  or  any  other  com- 
pany, body  politic  or  coij^rate,  or  any  individual  person,  or  to 
deceive  any  officer  of  the  association,  or  any  agent  ajipointed 
to  examine  the  affairs  of  any  such  association;  and  every  per- 
son who,  with  like  intent,  aids  or  abets  any  officer,  clerk,  or 
agent  in  any  violation  of  this  section,  si; all  be  deemed  guilty 
of  a  misdemeanor,  and  shall  be  imprisoned  not  less  than  five 
years  nor  more  than  ten." 

Section  711  of  the  revised  statutes  declaies  that  "  the  juris- 
diction vested  in  the  courts  of  the  United  States,  in  all  cases 
and  proceedings  hereinafter  mentioned,  slutll  be  exclusive  of  the 
courts  of  the  several  states.  First,  of  a'l  crimes  and  offenses 
cognizable  under  the  authority  of  the  United  States,"  etc. 
The  act  made  ])unishable  by  our  statute  is  not  made  an  offense 
by  the  laws  of  the  Uniteil  States.  No  indictment  in  the  courts 
of  the  United  States  could  have  been  returned  against  the  de- 
fendant for  receiving  the  money  of  a  deposit  or  when  the  bank 
was,  in  fact,  insolvent,  and  known  by  the  defendant  so  to  be. 
In  Peojyle  v.  Fonda,  02  Mich.,  401,  it  was  held  that  a  clerk 
in  a  national  bank  could  not  be  indicted  and  convicted  of 
embezzlement  of  the  moneys  of  such  bank,  in  a  state  court, 
and  under  a  state  statute,  for  the  reason  tha^  the  act  was  made 
])unishable  b}'  the  laws  <tf  the  United  States  and  the  juris- 
diction of  the  courts  of  the  United  States  declared  by  section 
711  of  the  revised  statutes  to  be  exclusive  of  the  courts  of 
the  several  states.  In  Com.  v.  Tenncy,  5>7  Mass.,  60,  the 
defendant,  a  clerk  in  a  national  Kmk,  was  indicted  under 
the  statutes  of  the  slate,  for  the  embezzlement  of  certain  bonds, 
the  property  of  one  Pope,  deposited  in  said  bank.  The  stat- 
utes of  the  United  States  at  that  time  punished  the  embezzle- 
ment of  the  prop(»rty  of  national  banks,  but  not  of  the  property 
of  individuals,  deposited  with,  and  in  the  custody  of  such 
banks.  The  conviction  was  upheld,  the  court  sa3'ing:  "As 
the  federal  courts  have  no  criminal  jurisdiction,  except  that 


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i 


74 


AMERICAN  CRIMINAL  REPORTS. 


conferred  by  congress,  no  question  can  be  made  as  to  the  con- 
stitutionality of  state  legislation  punishing  such  frauds,  until 
tliey  have  been  made  punishable  by  the  feder;^!  laws.  There 
is  no  view  of  the  relative  or  of  the  concurrent  powers  of  the 
two  governments  which  affects  the  decision  of  the  present  case, 
for  all  courts  and  jurists  agree  that  state  sovereignty  remains 
unabridged  for  the  punishment  of  all  crimes  committed  within 
the  limits  of  the  state,  except  so  far  as  they  have  been  brought 
within  the  sphere  of  federal  jurisdiction  by  the  penal  laws  of  the 
United  States." 

In  Co>n.  V.  Felton,  101  Mass.,  20-1:,  the  indictment  alleged 
that  Martin  the  casiiier  of  a  national  bank,  had  embezzled  its 
funds,  and  that  Felton,  tiio  defendant,  was  an  accessory  be- 
fore the  fact.  It  was  decided  that,  since  the  act  of  Congress 
made  tlie  act  of  Martin  punishable  as  a  misdemeanor,  he  could 
not  thereafter  be  indicted  under  the  statutes  of  the  state; 
and,  since  the  act  of  the  principal  was  made  a  misdemeanor 
by  the  federal  law,  the  defenthmt  could  not  be  indicted  as  an 
acc(!ssory,  since  there  are  no  accessories  in  misdemeanors. 
These  two  cases  illustrate  the  rule,  whicli  is,  that  so  long  as 
the  general  government  has  not  declared  the  act  an  offense 
against  its  laws,  it  is  competent  for  the  states  to  declare  it  an 
offense,  and  punish  thei-efor.  But  when,  as  to  a  matter  within 
the  competency  of  the  United  States,  congress  undeilakes  to 
legishite,  and  covers  the  whole  subject,  the  jurisdiction  of  the 
state  is,  or  may  be  thereafter  denied.  I^'^ox  v.  Ohio,  5  How. 
(U.  S.)  410;  Ifoore  v.  lllhum,  U  How.  13;  People  v.  White, 
34  Cal.,  183.    The  judgment  is  affirmed. 

Note.— .'>esM?M^/ion.— The  law  presumes  that  the  relation  existing  be- 
tween a  bank  and  its  customer,  is  tiiat  of  ordinary  debtor  and  creditor. 
Nichols  V.  State,  46  Neb.  715. 

.Sianie.— Whether  a  deposit  made  in  a  bank  by  its  customer,  is  a  general  or 
Bpecial  one,  is  a  question  of  fact  to  be  determined  from  the  intention  of  the 
parties,  but,  in  the  absence  of  evidence,  the  law  presumes  such  a  deiwsit  a 
general  one.    Id. 

Where  a  customer  of  a  bank,  who  has  overdrawn,  and  thus  stands  in- 
debted in  open  account  to  the  bank,  makes  a  general  deposit  therein,  the 
presumption  of  law  is  that  such  deposit  was  made  and  received  toward  the 
payment  of  such  overdraft.    Id. 

The  object  of  the  enactment  of  sections  637,  638.  Comp.  St.  1895,  was  to 
prevent  an  insolvent  banking  association  from  borrowing  money,  that  is, 
receiving  money  on  deposit,  and  becoming  debtor  therefor;  but  said  sec- 
tions should  not  be  so  construed  as  to  render  an  offlcer  of  a  banking  associa- 


CARR.v.  STATE. 


75 


tion  piiilty  of  a  felony  for  permitting  a  debtor  of  the  association  to  pay  his 
dfl)t  tliereto.     Id. 

A',  vxis  indicted  for  receiving  a  dejiosit  in  a  bank  of  which  he  was 
casliier,  linowing  at  that  time  tlie  bank  w  s  Insolvent.  The  state,  to  sus- 
tain the  iiiilictnifnt.  offered  evidence  which  tended  to  show  the  existence 
of  the  bank;  that  N.  was  its  cashier;  that  it  was  insolvent,  to  his  knowl- 
edge, on  the  18th  of  February,  1895;  and  that  on  said  date  one  M.  deposited 
in  said  bank  $11.  N.  then  offered  to  prove  that  when  M.  made  such  deposit 
he  was  overdrawn  at  tlie  bank  $15.4iO.  The  court  excluded  the  offer.  Held, 
error.    Id. 


Cakb  v.  State. 
(104  Ala.  4.) 


Banking  Laws:    Receiving  deposit,  kvowivg  banJe  is  insolvent— Extradi- 
tion—Jury. 


1^^ 


8. 


1.  A  person  extradited  from  another  state  may  be  tried  on  charge  other 

than  that  on  wiiich  he  was  extradited,  without  fa"st  being  tried  on  the 
latter,  or  given  a  chance  to  return  to  the  state  which  surrendered  liim. 

2.  An  indictment  describing  "  three  hundred  and  fifty-five  dollars,  lawful 

money,  currency  of  the  Uniti.'d  States  of  America,  a  more  particular 
description  of  said  money  being  unknown,"  alleges  the  value  of  the 
property,  and  that  such  property  was  "  money  or  thing  of  value." 
The  refusal  of  a  continuance  can  not  be  reviewed. 

4.  The  court  need  not  allow  defendant  to  examine  jurors  pronounced  com- 

petent on  the  voir  dire,  to  show  a  cause  of  challenge  not  brought  to 
light  by  the  statutory  interrogations. 

5.  On  the  trial  of  a  banker  for  receiving  money  on  deposit,  knowing  the 

bank  to  be  insolvent,  one  who  is  prosecuting  witness  in  anotiu^r  like 
case  pending  against  accused,  and  who  believes  him  guilty  in  tliat,  is 
not  a  competent  juror. 

6.  Under  the  act  (Acts  1892-9JJ)  making  guilty  of  a  misdemeanor,  a  bank 

oflicer  or  agent  who  shall  receive  for  deposit  any  money,  knowing  at 
the  time  that  the  bank  is  insolvent,  a  manager  who  keeps  his  bank 
open  for  business,  knowing  it  to  be  insolvent,  is  guilty  in  respect  to  a 
deposit  received  by  the  teller  in  the  course  of  business,  though  the 
manager  himself  be  not  present,  or  even  in  town,  and  the  teller  him- 
self have  no  guilty  knowledge. 

7.  The  teller  need  not  have  been  specifically  authorized  by  defendant  man- 

ager to  receive  the  particular  deposit. 

It  is  immaterial  whether  the  b.ink  became  insolvent  through  misfeasance 
of  defendant,  or  disasters  as  to  which  he  was  blameless. 

It  is  immaterial  whether  the  insolvency  consists  in  inability  to  pay  de- 
positors or  other  creditors,  or  both. 
10.  A  charge  that,  if  the  jury  believe  from  the  evidence  that  the  act  was 


8, 


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Ye  AMERICAN  CRIMINAL  REPORTS. 

a  lawful  act,  then  clefciulant  is  not  guilty,  mibmits  the  law  to  the 

jury. 
11.  A  cliaiBe  nuthorizinR  conviction  on  mere  belief,  without  mention  of 

"  reasuimble  doul)t,"  is  error. 

Appeal  from  District  Court,  Colbert  County;  W.  P.  Chit- 
■wood,  Judge. 

Ilinton  E.  Carr  was  convicted  of  receivinir  a  deposit,  know- 
in"-  his  l)ank  to  be  insolvent,  and  appeals.    Keversed. 

The  appellant  was  tried  and  convicted  under  the  following 
indictment:  "The  grand  jury  of  said  county  charges  that, 
before  tiie  iinding  of  tiiis  indictment,  IIint(m  E.  Carr,  who  Avas 
at  the  time  the  president  of  tlie  Tuscumbia  Banking  Company, 
a  banking  lirm,  engaged  in  a  banking  businoss,  received  from 
Eobert  T.  Abernathy,  for  deposit,  three  hundred  and  fifty-five 
dollars,  lawful  money,  currency  of  the  United  States  of  Amer- 
ica, a  more  particular  description  of  said  money  being  unknown 
to  the  grand  jury,  and  the  said  Ilinton  E.  Carr  knew  at  the 
time  said  deposit  was  received,  or  had  good  cause  to  believe, 
that  said  banking  firm  was  in  a  failing  or  insolvent  condition. 

"  And  the  grand  jury  of  said  county  further  charge  that,  be- 
fore the  landing  of  this  indictment,  Ilinton  E.  Carr,  who  was 
at  the  time  a  member  of  the  firm  styled  the  Tuscumbia  Bank- 
ing Company,  a  partnership  composed  of  Ilinton  E.  Carr  and 
Emma  Carr,  which  lirm  or  partnership  was  engaged  in  the 
banking  business,  received  for  deposit  from  Robert  T.  Aber- 
nathy three  hundred  and  fifty-five  dollars,  lawful  money,  cur- 
rency of  the  United  States  of  America,  a  more  particular 
description  of  said  money  being  unknown  to  the  grand  jury; 
and  the  said  Ilinton  E.  Carr  knew  at  the  time  said  deposit 
was  received,  or  had  good  cause  to  believe,  that  the  said  firm 
or  partnership  was  in  a  failing  or  insolvent  condition — against 
the  peace,"  etc. 

The  defendant  pleaded  the  following  plea  in  abatement : 
"Comes  the  defendant,  Ilinton  E.  Carr,  and  i)leads  to  the  ju- 
risdiction of  the  court  in  this  cause,  and  objects  to  his  being  put 
upon  his  trial,  because  he  says  that  he  was,  on  the  7th  day  of 
August,  1893,  and  previous  thereto,  in  the  State  of  Iowa,  and 
had  gone  therefor  the  purpose  and  intent  of  making  his  home 
in  said  state;  that  while  there  he  Avas  arrested,  and  was,  by 
order  of  the  Governor  of  said  State,  extradited  to  the  State  of 


CARR  V.  STATE. 


77 


Alabama  for  the  charge  of  embezzlement,  and  not  for  the 
offense  set  out  in  the  indictment  in  this  cause,  which  original 
warrant  of  extradition  issued  by  said  Governor  of  the  State  of 
Iowa  is  made  a  part  of  this  plea.  And  he  alleges  that  he  Avas 
a  resident  of  said  State  of  Iowa  when  said  warrant  of  extradi- 
tion was  granted,  wherefore  he  prays  that  said  indictment  bo 
abated,  and  he  further  prays  that  he  be  not  placed  upon  trial 
upon  the  same.  lie  further  pleads  to  the  jurisdiction  of  this 
court  in  the  premises,  and  he  insists  and  pleads  that  he  can  be 
only  tried  for  the  offense  upon  which  he  was  extradited,  and 
he  alleges  and  states  that  he  was  not  extradited  for  the  offense 
charged  herein." 

To  this  plea  the  State  replied  that,  after  the  defendant  was 
brought  to  the  State  of  Alabama,  the  indictment  in  the  present 
case  was  found  by  the  grand  jury  of  Colbert  county,  Ala., 
and  the  defendant  was  arrested  in  the  State  of  Alabama  upon 
the  writ  of  arrest  issued  upon  said  indictment;  and,  further, 
that,  because  the  defendant  was  extradited  for  one  offense, 
does  not  preclude  his  prosecution  for  any  other  offense  the  de- 
fendant may  have  committed  in  this  State.  The  plea  in  abate- 
ment was  overruled  and  disallowed,  and  the  defendant  then 
demurred  to  the  indictment,  and  upon  the  demurrer  being 
overruled,  the  defendant  moved  the  court  for  a  continuance  on 
the  ground  that  ho  had  been  extradited  for  an  offense  differ- 
ent from  the  one  for  which  he  was  now  indicted,  and  was 
therefore  taken  by  surprise,  and  had  not  had  an  opportunity 
to  prepare  a  defense  to  the  present  indictment,  which  ho  could 
do  if  the  continuance  was  granted,  and  time  allowed  him;  and 
that  he  had  a  good  and  valid  defense  to  the  present  prosecu- 
tion. The  court  overruled  this  motion  for  a  continuance,  and 
tiie  defendant  duly  excepted. 

On  impaneling  the  jury  for  the  trial  of  the  defendant,  the 
court  asked  the  usual  questions  as  to  qualification.  The  de- 
fendant, by  leave  of  the  court,  examined  one  August  Neff, 
who  said  he  had  been  a  witness  before  the  grand  jury  in  a  sim- 
ilar case  to  this,  and  had  a  like  case  now  ponding  in  the  same 
court  against  the  defendant,  and  believed  that  the  defendant 
was  guilty  in  the  case  in  which  he  was  a  witness.  The  de- 
fendant objected  to  the  juror  as  being  incompetent,  and  chal- 
lenged him  for  cause.  The  court  overruled  the  objection,  and 
putting  the  juror  upon  the  defendant,  he  challenged  him  per- 


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WIISTII,N.Y.  MSM 

(7U)I72-4S03 


V 


78 


AMERICAN  CRIMINAL  REPORTS. 


eraptorily.  To  this  action  of  the  court  the  defendant  duly 
excepted.  "The  defendant  then  asked  the  court  leave  to 
examine  any  juror  upon  his  voir  dire  as  to  his  fixed  opinion, 
and  to  show  if  he  had  a  like  case  pending  in  this  court  and 
against  this  defendant."  The  court  refused  to  allow  defendant 
to  put  the  jurors  upon  their  voir  dire,  and  the  defendant  duly 
excepted. 

The  testimony  for  the  state  tended  to  show  that  one  E.  T. 
Abernathy,  Jr.,  had,  at  the  direction  of  his  father,  deposited 
in  the  Tuscumbia  Banking  ComjMiny,  a  firm  composed  of  the 
defendant  and  his  wife,  $355;  that  Birt  Harrington  was  the 
assistant  cashier,  and  received  the  money,  and  that  the  money 
had  never  been  paid  back  to  the  said  K.  T.  Abernathy,  Sr.; 
that  the  bank  failed  June  8, 1893,  a  short  time  after  the  de- 
posit of  said  amount  was  made,  which  was  on  May  5,  1893. 
The  defendant  moved  to  exclude  this  testimony  on  the  ground 
that  it  shovved  the  deposit  was  made  with  "  The  Tuscumbia 
Banking  Company,"  and  not  with  the  defendant,  as  charged 
in  the  indictment.  This  motion  was  overruled,  and  the 
defendant  duly  excepted.  The  state  also  introduced  evidence 
tending  to  show  that  the  said  Birt  Harrington  was  regularly 
employed  as  assistant  cashier  of  the  Tuscumbia  Banking  Com- 
pany, and  had  authority  to  receive  deposits.  The  other  facts 
are  sufficiently  stated  in  the  opinion. 

The  court  at  the  request  of  the  state,  gave  to  the  jury  the 
following  written  charges : 

(1)  "  If  the  jury  believe  from  the  evidence  that  the  defend- 
ant was,  on  the  5th  day  of  May,  1893,  engaged  in  a  banking 
business  in  Colbert  county,  Alabama,  under  the  firm  name  and 
style  of  Tuscumbia  Banking  Company,  and  that  the  said  Bank- 
ing Company  was  a  partnership  composed  of  the  defendant  and 
his  wife,  Emma  Carr,  and  that  the  said  Banking  Company  was 
at  said  time  insolvent,  or  in  a  failing  condition,  and  defendant 
knew,  or  had  good  cause  to  believe  it,  and  employed  Birt  Har- 
rington to  act  as  assistant  cashier  of  the  bank,  and  made  it  his 
duty  to  receive  deposits,  and  that  he  (Harrington)  did  receive 
$355  from  K.  T.  Abernathy  on  deposit  on  the  5th  day  of  May, 
1893,  then  you  should  find  the  defendant  guilty." 

(2)  "  If  the  jury  believe  from  the  evidence  that  the  Tus- 
cumbia Banking  Company,  composed  of  defendant  and  his 
wife,  were  on  the  5th  of  May,  1893,  doing  a  banking  business, 


1] 


CARR  V.  STATE. 


79 


that  said  Tuscurabia  Banking  Company  had  in  its  employ  Birt 
Harrington,  whose  duty  it  was  to  receive  deposits,  and  believe 
further  that  said  Tuscumbia  Banking  Company  was  on  the  5th 
day  of  May,  1893,  in  a  failing  or  insolvent  condition,  and  that 
defendant  knew,  or  had  good  cause  to  believe  it  was  in  a  failing 
or  insolvent  condition,  and  further  believe  that  on  the  5th  day 
of  May,  1893,  Birt  Harrington,  in  the  employ  of  defendant, 
received  from  R.  T.  Abernathy  $355  on  the  deposit,  then  the 
jur}'^  should  find  the  defendant  guilty  as  charged  in  the  indict- 
ment." To  the  giving  of  each  of  these  charges  the  defendant 
separately  excepted,  and  likewise  separately  excepted  to  the 
court's  refusal  to  give  each  of  the  following,  among  other, 
charges  requested  by  him  in  writing : 

(2)  "  If  the  jr  .y  believe  from  the  evidence  that  Birt  Har- 
rington received  the  deposit  from  Abernathy  without  instruc- 
tions from  Carr,  then  they  must  find  for  the  defendant." 

(3)  "Unless  the  jury  are  satisfied,  beyond  a  reasonable 
doubt,  from  the  evidence,  that  Carr  authorized  or  directed 
Harrington,  or  had  knowledge  of  Harrington  receiving  the 
deposit  made  by  Abernathy,  then  they  must  find  for  the 
defendant." 

(5)  "If  the  jury  believe  from  the  evidence  that  the  assets 
of  the  bank  became  so  depreciated  in  value  as  to  cause  the 
failure  of  the  bank,  and  that  it  Avas  not  the  acts  of  Carr,  then 
they  must  find  for  the  defendant." 

(0)  "  Unless  the  jury  are  satisfied,  beyond  a  reasonable 
doubt,  that  the  defendant  intended  to  defraud  the  depositors, 
and  that  it  was  not  through  depreciation  of  value  of  assets 
that  the  bank  failed,  then  they  must  find  for  the  defendant." 

(8)  "  If  the  jury  believe  from  the  evidence  that  Carr's  or  the 
bank's  credit  was  good  on  5th  of  May,  and  so  continued  till 
8th  of  June,  and  that  depreciated  assets  caused  during  that 
time  its  failure,  then  they  will  find  for  the  defendant." 

(9)  "  If  the  jury  believe  from  the  evidence  that  the  failure 
of  the  bank  [was]  not  through  fault  of  Carr,  then  they  will 
find  for  defendant." 

(10)  "Unless  the  jury  are  satisfied,  beyond  a  reasonable 
doubt,  that  when  this  deposit  was  made,  Carr  knew  the 
bank  was  in  failing  circumstances,  and  that  Carr  intended  to 
injure,  defraud,  or  apply  the  money  to  his  own  use,  then  the 
jury  will  find  for  the  defendant." 


80 


AMERICAN  CRIMINAL  REPORTS. 


I 


(12)  "  If  the  jury  believe  from  the  evidence  that  Harring- 
ton received  the  deposit  made  by  Abernathy  in  Carr's  absence, 
and  without  Carr's  knowledge,  or  instructions  to  do  so,  then 
they  must  find  for  the  defendant." 

(15)  "  If  the  jury  believe  from  the  evidence  that,  if  prop- 
erty around  and  about  the  bank  and  its  proximity  had  not 
depreciated  so,  that  then  this  suit  would  not  have  been  insti- 
tuted, then  they  must  find  for  defendant." 

(16)  "  Before  the  jury  can  convict,  they  must  find  from  the 
evidence,  beyond  a  reasonable  doubt,  that  Carr  knew  the  bank 
was  in  failing  circumstances  when  the  deposit  was  made;  that 
he  must  have  received  the  deposit  in  person,  or  have  author- 
ized or  directed  Harrington  to  receive  it,  and  that  it  was  done 
by  and  with  Carr's  consent  and  knowledge." 

(17)  "  The  jury  must  be  satisfied  from  the  evidence,  beyond 
a  reasonable  doubt,  that  Carr  must  have  authorized  the  receipt 
of  the  money  deposited,  or  he  must  have  been  present,  and 
he  also  must  have  known  the  bank  was  in  failing  circumstances 
before  they  can  find  the  defendant  guilty." 

(19)  "  Before  the  jury  can  convict  in  this  case  they  must 
be  satisfied,  beyond  a  reasonable  doubt,  that  Carr  knew  of  the 
failing  condition  of  the  bank  at  the  time  of  the  deposit;  that 
he  received  the  deposit  himself,  or  authorized  or  directed  or 
knew  of  it  when  done." 

(23)  "  Before  the  jury  can  convict  in  this  cause,  they  must 
be  satisfied,  beyond  a  reasonable  doubt,  that  the  defendant 
knew,  at  the  time  of  the  receipt  of  the  money,  of  its  receipt, 
and  that  the  defendant  knew,  or  had  good  cause  to  believe 
the  bank  to  be  in  a  failing  or  insolvent  condition,  and  knew  of 
the  receipt  of  the  deposit." 

(27)  "  If  the  Tuscumbia  Banking  Company  failed  on  ac- 
count of  depreciation  of  the  bank's  property  and  assets 
after  the  deposit  was  made  by  Abernathy,  then  the  jury  must 
find  for  the  defendant." 

(31)  "  If  the  jury  believe  from  the  evidence  that  the  deposits 
made  in  the  bank  were  invested  in  property  and  loans,  an 
ordinary  way  of  banking,  and  that  the  property  and  lands 
have  so  failed  and  depreciated  since  Abernathy's  deposit  that 
money  could  not  be  realized  on  them  to  satisfy  the  depositors 
then  the  jury  must  find  for  the  defendant." 

(33)    «  The  state  must  prove  to  your  satisfaction,  beyond  all 


W 


CARE  V.   STATE. 


81 


reasonable  doubt,  that  Carr  received  the  deposit  of  Dr.  E.  T. 
Abernathy." 

(35)  "  Unless  the  jury  believe  from  the  evidence,  beyond  all 
reasonable  doubt,  that  Carr  knew  of  the  receipt  of  the  deposit 
of  $355,  or  assented  to  it,  or  authorized  its  receipt,  then  they 
will  find  the  defendant  not  guilty." 

(36)  "  Unless  the  evidence  satisfies  the  minds  of  the  jury, 
beyond  all  reasonable  doubt,  that  Carr  knew  of  the  deposit  at 
the  time  of  its  reception,  then  they  Avill  find  the  defendant  not 
guilty." 

(37)  "  Unless  the  evidence  satisfies  the  minds  of  the  jury, 
beyond  all  reasonable  doubt,  that  Carr  authorized  Harrington 
to  receive  the  deposit  of  $355  from  R.  T.  Abernathy,  then 
they  will  find  the  defendant  not  guiljty." 

(39)  "  Unless  the  evidence  satisfies  th6  jury,  beyond  all 
reasonable  doubt,  that  the  defendant  was  present  at  the  time, 
controlling  and  managing  the  bank,  when  the  deposit  was  re- 
ceived by  Harrington,  then  they  will  find  the  defendant  not 
guilty." 

(41)  "  The  jury  must  believe  from  the  evidence  beyond  all 
reasonable  doubt  that  Carr  received  from  Robert  T.  Aber- 
nathy, for  deposit,  $355,  and  further,  that  defendant  knew  at 
the  time  said  deposit  was  received,  or  had  good  cause  to 
belie^'e,  that  the  Tuscurabia  Banking  Co.  was  in  a  failing  con- 
dition, before  they  can  find  him  guilty." 

(42)  "  Gentlemen  of  the  jury,  the  defendant  can  not  be  con- 
victed unless  the  evidence  satisfies  your  minds,  beyond  all 
reasonable  doubt,  that  Carr  procured,  counseled,  or  com- 
manded Harrington  to  receive  the  deposit  of  Dr.  Abernathy, 
and  if  the  state  has  so  failed  to  prove  it  to  your  satisfaction, 
beyond  all  reasonable  doubt,  then  you  will  find  the  defendant 
not  guilty." 

Asa  E.  Stratton  and  Jackson,  Orme  tSs  Cooper^  for  appellant. 
Wm.  L.  Martin^  Attorney-General,  and  Thos.  B.  Jioulhac, 
for  the  State. 


MoClellan,  J.  There  has  been  some  conflict  in  the  adjudged 
cases,  but  it  may  now  well  be  considered  as  settled  by  the 
numerical  and  intrinsic  weight  of  the  decisions  in  other  States, 
by  an  adjudication  of  this  court,  by  the  unanswerable  argu- 


82 


AMEIUCAN  CRIMINAL  REPORTS. 


ment  of  Mr.  Moore  in  his  work  on  Extradition  and  Inter-State 
Kendition,  and  finally  by  the  Supreme  Court  of  the  United 
States,  that  a  fugitive  from  justice,  who  has  been  surrendered 
by  one  State  of  the  Union  to  another  State,  upon  requisition 
charging  him  with  the  commission  of  a  specific  crime,  has, 
under  the  constitution  and  law  of  the  United  States,  no  right, 
privilege,  or  immunity  to  be  exempt  from  indictment  and  trial, 
in  the  State  to  which  he  is  surrendered,  for  any  other  or 
different  olfense  from  that  designated  in  the  requisition,  with- 
out first  being  tried  on  the  charge  for  which  he  was  extradited, 
or  having  an  opportunity  to  return  to  the  State  from  which  he 
was  extradited.  In  re  Norjes,  17  Albany  L.  J.  407;  Ham  v. 
State,  4  Tex.  App.  645;  State  v.  SteioaH,  60  Wis.  587;  Post  v. 
Gross,  135  N.  Y.  536;  Com.  v.  Wri(//it,  158  Mass.  149;  In 
re  Miles,  52  Vt.  609;  I^je  parte  Barker,  87  Ala.  4;  2  Moore 
on  Extrad.,  §§  642-644;  Lascelles  v.  Georyia,  148  U.  S.  537. 

The  trial  court  did  not  err,  therefore,  in  putting  the  de- 
fendant on  trial  in  this  case,  notwithstanding  the  fact, 
presented  by  plea  and  otherwise,  that  he  had  been  surrendered 
by  the  State  of  Iowa  on  another  and  different  charge,  upon 
which  he  had  not  been  tried,  and  was  still  being  held. 

The  indictment  in  this  case  is  drawn  under,  and  pursues  the 
language  of  the  act  of  December  12, 1892,  "To  prevent  banks, 
bankers,  firms,  corporations,  or  other  persons  from  receiving 
deposits  of  bank  notes,  specie,  money,  or  other  thin^  of  value, 
Avhen  in  a  failing  or  insolvent  condition,"  and  averring  that 
the  defendant  received  from  "  Robert  T.  Abernathy  for  de- 
posit, |355,  lawful  money,  currency  of  the  United  States  of 
America,  a  more  particular  description  of  said  money  being  un- 
known to  the  grand  jury,"  etc.  It  was  not  open  to  the  demur- 
rer interposed  by  the  defendant,  which  proceeded  on  the 
grounds  that  no  ,alue  was  alleged,  and  that  the  indictment 
failed  to  allege  a  deposit  of  money  or  thing  of  value,  within 
the  terms  of  the  statute.  The  demurrer  was  properly  over- 
ruled.   Du  Bois  V.  State,  50  Ala.  1 39;  Duvall  v.  State,  63  A  la.  1 2. 

The  action  of  the  trial  court  in  denying  a  continuance  of  the 
case,  as  has  long  been  well  established,  is  not  revisable  by  this 
court.  A.  G.  S.  R.  R.  Co.  v.  Hill,  90  Ala.  71;  S.  C,  93  Ala. 
514;  Walker  v.  State,  91  Ala.  76. 

The  court  erred  in  putting  the  juror  Neff  on  the  defendant. 
It  is  quite  true  that  the  court  was  under  no  duty  to  allow  the 


CARR  V.  STATE. 


88 


defendant  to  further  examine  this  juror  after  his  competency 
had  been  pronounced  on  the  voir  dire,  with  a  view  to  showing 
a  cause  for  challenge  not  brought  to  light  by  statutory  inter- 
roo'atories,  and  hence  it  is  that  no  error  was  committed  in  re- 
fr  iing  to  allow  such  further  examination  in  respect  of  other 
jurors.  Bales  v.  State,  63  Ala.  30;  12  Am.  &  Eng.  Enc.  Law, 
p.  358;  Ilawes  v.  State,  88  Ala.  37,  66;  Lundy  v.  State,  91  Ala. 
100.  But  the  trial  judge  did  permit  this  examination  in  refer- 
ence to  Neff,  and  it  was  developed  thereby  that  he  had  been  a 
witness  before  the  grand  jury  in  a  case  against  the  defendant, 
similar  to  this,  and  had  a  like  case  to  this — that  is,  a  pros- 
ecution against  the  defendant  for  receiving  from  him  (Neff) 
money  on  deposit  after  the  defendant  knew,  or  had  good  rea- 
son to  believe,  his  bank  was  insolvent,  or  in  a  failing  condition 
— then  pending  in  the  court,  and  that  he  believed  that  de- 
fendant was  guilty  in  that  case,  in  which  he,  the  juror,  was  a 
witness,  and  in  which,  if  there  was  a  conviction,  Neff  would 
recover,  by  way  of  a  fine,  the  amount  of  his  deposit.  It  can 
not  be  conceived  on  this  state  of  facts,  that  Neff  could  have 
been  such  impartial  juror  as  the  constitution  guaranteed  to 
the  defendant  in  respect  of  the  main  issue  commor  to  both 
cases,  namely,  whether,  when  the  deposits  were  received,  the 
defendant  knew  or  had  good  reason  to  believe  the  banking 
partnership,  of  which  he  was  a  member,  was  in  a  failing  or  in- 
solvent condition.  The  juror  should  have  been  discharged  on 
the  defendant's  challenge  for  cause.  12  Am.  &  Eng.  Enc.  Law, 
p.  350  et  seq.,'  Smith  v.  State,  55  Ala.  1. 

The  body  of  the  statute  under  which  this  indictment  was 
found  is  in  the  following  language  (Acts  1892-93,  p.  95) : 

"  Section  1.  Be  it  enacted  by  the  General  Assembly  of  Ala- 
bama, That  any  president,  cashier  or  other  officer,  by  whatever 
title  he  may  be  called  or  known,  of  any  bank,  banking  firm  or 
corporation  engaged  in  a  bankiag  business,  or  any  other  per- 
sons engaged  in  said  business,  or  the  agent,  or  agents  thereof, 
who  shall  receive  for  deposit  any  bank  notes,  specie,  money  or 
other  thing  of  value,  knowing  at  the  time  said  deposit  is  re- 
ceived, or  having  good  cause  to  believe  that  such  bank,  bank- 
ing firm,  corporation,  person  or  persons,  are  in  a  failing  or 
insolvent  condition,  shall,  for  each  offense,  be  deemed  guilty  of 
a  misdemeanor,  and  on  conviction  thereof,  be  fined  not  less 
than  double  the  amount  of  said  deposit. 


^'[i 


I 


•4' 


AM 


t  J 


84 


AMERICAN  CRIMINAL  REPORTS. 


"  Sec.  2.  Be  it  further  enacted,  That  in  all  convictions  under 
this  act,  the  fine  shall  be  paid  in  lawful  money  of  the  United 
States  only,  one-half  of  which  shall  go  to  the  person  who  made 

the  deposit. 

"Sec.  3.  Be  it  further  enacted.  That  the  payment  back  to 
the  depositor  of  the  bank  notes,  specie  money  or  other  thing  of 
value,  deposited  before  the  conviction  hereunder,  and  the  court 
costs  thereof,  which  may  have  accumulated,  shall  be  a  good 
and  lawful  defense  to  any  prosecution  under  this  act." 

The  evidence  showed  that  defendant  and  his  wife,  as  part- 
ners, carried  on  a  banking  business  in  Colbert  county,  Ala., 
under  the  name  and  style  of  "Tuscurabia  Banking  Company;" 
that  the  defendant  was  the  managing  and  controlling  member 
of  said  firm;  and  that  one  Harrington  was  the  agent  of  said 
firm,  and  acting  cashier  and  book-keeper  thereof,  at  the  time  the 
deposit  involved  here  was  made.  It  was  also  made  to  appear 
tfiat  on  the  day  said  deposit  was  made  the  defendant  was 
away  from  Tuscumbia,  the  town  where  the  business  was  be- 
ing carried  on,  and  that  the  deposit  was  received  by  said  Har- 
rington for  the  Tuscumbia  Banking  Company.  On  these  facts 
it  is  contended  by  the  defendant,  through  objections  to  and 
motions  to  exclude  testimony,  and  requests  for  instructions, 
that  he  did  not  receive  the  deposit  alleged  in  the  indictment, 
and  should  be  acquitted  on  the  uncontroverted  evidence;  the 
theory  of  the  defense  in  this  regard  being  that  no  other  than  a 
direct,  personal,  manual  receipt  of  deposits  can  fill  the  terms  of 
the  enactment.  There  is  nothing  in  this  position.  The 
defendant,  as  a  member  and  manager  of  the  firm  called 
the  Tuscumbia  Banking  Company,  carried  on  the  business  of 
banking  at  Tuscumbia;  he  thereby,  so  long  as  the  bank  was 
kept  open,  invited  the  public,  and  Robert  J.  Abernathy,  as  one 
of  the  public,  to  make  deposits  with  said  firm.  Whether 
present  or  absent  personally,  he  provided  means  for  the  ac- 
ceptance of  this  invitation,  by  the  employment  of  Harrington 
to  take  possession  of  deposits  tendered  in  consequence  of  it  for 
him,  and  the  act  of  Harrington  in  so  doing  is  his  act,  as  fully, 
in  every  sense,  as  if  he  had  performed  it  by  his  hands;  and  this 
wholly  regardless  of  all  considerations  as  to  whether  Harring- 
ton himself  might  be  held  in  criminal  responsibility  for  his  act 
as  agent.  The  receipt  of  the  deposit  was  in  the  usual  course 
of  the  business,  which  the  defendant  carried  on  and  kept  open 


CARE  V.  STATE. 


85 


for  the  very  purpose,  among  others,  perhaps,  of  receiving  on 
deposit  the  funds  of  other  persons,  and  no  matter  what 
agencies  he  employed,  he  is  guilty  under  the  statute  if  he  at 
the  time  knew,  or  had  good  cause  to  believe,  that  the  Tuscura- 
bia  Banking  Company  was  in  a  failing  or  insolvent  condition. 
1  Morse  on  Banks  &  Banking,  §  178;  1  Whart.  Cr.  Law, 
§  247;  2  Whart.  Cr.  Law,  §  1503;  State  v.  Cadwell  et  al,  79 
Iowa,  432.  And  equally  untenable  is  the  position  advanced 
in  objections  and  requests  for  charges,  that  the  defendant 
could  not  be  convicted  because  the  business  was  conducted 
under  the  name  of  the  Tuscumbia  Banking  Company,  or  as  a 
firm. 

Several  of  the  charges  requested  were  to  the  effect  that  Carr 
could  not  be  convicted  unless  he  authorized  Harrington  to  re- 
ceive this  deposit  from  Abernathy.  Of  course  it  was  essential 
that  Harrington  should  be  shown  to  have  acted  in  the  matter 
by  authority  of  the  firm  or  Carr;  but  it  was  by  no  means 
necessary  to  show  that  he  had  any  specific  authority  to  receive 
tills  particular  deposit,  as  the  manifest  tendency  of  these 
charges  was  to  induce  the  jury  to  conclude.  They  were,  there- 
fore obviously  misleading. 

It  is  wholly  immaterial,  under  this  indictment,  how  the 
Tuscumbia  Banking  Company  came  to  be  in  a  failing  or  in- 
solvent condition — whether  through  the  misfeasance  or  mal- 
feasance of  the  defendant,  or  through  business  disasters 
involving  nothing  reprehensible  on  his  part,  or  through 
depreciation  in  value  of  assets  incident  to  the  general  monetary 
condition  of  the  country.  The  point  of  sole  inquiry  is  as  to 
the  fact  of  insolvency  or  "  failing  and  insolvent  condition,'' 
and  the  defendant's  knowledge  thereof,  or  his  having  good 
reason  to  so  believe,  at  the  time  of  deposit  made.  And  it  is 
obviously,  also,  beyond  the  issue  whether  the  insolvency 
consists  in  inability  to  pay  depositors  only,  or  to  pay  other 
liabilities,  or  other  liabilities  and  depositors.  These  consider- 
ations dispose  of  the  exceptions  reserved  to  the  refusal  of  the 
trial  court  to  give  many  of  the  charges  requested  by  the  de- 
fendant. 

Of  course,  if  the  insolvency  of  the  banking  company  resulted 
from  the  depreciation  of  property  after  the  alleged  deposit 
was  made,  the  defendant  could  not  be  convicted  of  receiving 
the  deposit.    The  statute  has  reference  to  a  failing  or  insolv' 


86 


AMERICAN  CRIMINAL  REPOR'fa 


ii  \ 

i 


ent  condition,  existing  at  the  time  when  the  deposit  is  miido. 
But  the  charges  requested  on  this  iwint  were  properly  refused 
because  there  was  no  evidence  that  the  insolvency,  if  it  existed 
at  all,  resulted  from  depreciation  of  property  subsequent  to 
Abernathy's  deposit.    They  were  absti-act. 

Charge  32  requested  by  the  defendant,  to  Avit,  "  If  the  jury 
believe  from  the  evidence  that  the  act  of  receiving  the  deposit 
of  $355  was  a  lawful  act,  then  the  defendant  is  not  guilty," 
submits  tlie  whole  case,  both  on  the  law  and  the  facts,  to  the 
jury.  In  our  jurisprudence,  juries  are  not  the  judges  and  triers 
of  the  law,  but  of  the  facts  only. 

Two  charges  were  given  at  the  request  of  the  State,  and  each 
of  them  is  patently  bad,  under  the  decisions  of  this  court,  in 
that  they  severally  authorize  a  conviction  upon  the  mere  belief 
bv  the  jury  of  the  facts  necessary  to  make  out  the  case  for  the 
State,  without  regard  to  the  degree  of  their  belief,  i.  e.,  whether 
they  so  belie  v^e  beyond  a  reasonable  doubt.  Pierson  v.  State, 
99  Ala.  14S;  lihea  v.  State,  100  Ala.  119. 

If  there  was  error  in  allowing  the  witness  Harrington  to 
testify  that  Mrs.  Carr  signed  the  name,  "  Tuscumbia  Banking 
Company,"  to  the  deed  of  assignment  of  June  10,  18'93,  instead 
of  calling  an  attesting  witness  to  that  signature,  or  in  allowing 
the  witness  Sampson  to  depose  to  the  contents  of  the  mortgage 
covering  the  bank  building  without  introducing  the  probated 
mortgage,  the  error  was  cured  in  the  first  case  by  subse- 
quent proof  by  an  attesting  witness  of  the  execution  of  the 
assignment,  and  the  introduction  of  the  deed  in  evidence,  and 
in  the  other  case  by  the  subsequent  introduction  of  the  acknowl- 
edged and  recorded  mortgage. 

Some  other  exceptions  to  the  rulings  of  the  court  on  the 
admission  of  testimony  and  in  respect  of  charges  requested  by 
the  defendant  are  presented  by  this  record,  but  they  are  so 
patently  without  merit  that  we  do  not  consider  it  necessary 
to  discuss  them. 

For  the  errors  which  we  have  pointed  out  the  judgment  must 
be  reversed.  The  cause  will  be  remanded.  Reversed  and  re- 
manded. 

"SmB.— Constitutional  law— Validity  of  statute  for  protection  of  depoS' 
itora—Dve  process  of  Zow.— In  the  very  recent  case  of  Meadowcroft  et  at.  v. 
People,  163  111,  56,  the  question  respecting  the  constitutionality  of  the  act 
of  the  General  Assembly  of  the  State  of  Illinois,  laws  of  1879,  making  the 


CARR  V.  STATE. 


87 


rocoipt  of  deposits  by  a  banker,  when  insolvent,  embezzlement,  is  diseuBKed 
with  great  ability,  and  the  conclusion  reached  that  such  an  act  does  not 
<loprive  the  accused  of  liberty  or  property  without  due  process  of  law,  a» 
tliu  buHiniMM  of  banking  is  affected  with  a  public  interest,  and  is  subject  to 
regulation  within  the  general  police  power.  In  the  opinion,  Mr.  Justice 
Baker,  among  other  thing:*,  says: 

"  In  Board  of  Commiammera  v.  Merchant,  108  N.Y.  148,  itis  said:  ' The 
general  jwwer  of  the  Legislature  to  prescribe  rules  of  evidence  and  met  hods 
of  proof  is  undoubted.  While  the  power  has  its  constitutional  limitations, 
it  is  not  easy  to  define  precisely  what  they  are.  A  law  which  would  prac- 
tically shut  out  the  evidence  of  a  party,  and  thus  deny  him  the  op[K)rtUnity 
for  trial,  would  sul)8tantially  deprive  him  of  due  process  of  law.  It  would 
not  be  possible  to  uphold  a  law  which  made  an  act  prima  facie  evidence 
of  crime  which  had  no  relation  to  a  criminal  act,  and  no  tendency  what- 
ever, by  itself,  to  prove  a  criminal  act.  But  so  long  as  the  Legislature,  in 
prescribing  rules  of  evidence,  in  either  civil  or  criminal  cases,  leaves  a 
party  a  fair  opportunity  to  make  his  defense,  and  to  submit  all  the  facts  to 
the  jury  to  be  weighed  by  them,  upon  evidence  legitimately  bearing  upon 
them,  it  is  difficult  to  perceive  how  its  acts  can  be  assailed  upon  constitu- 
tional grounds.'  And  in  the  later  case  of  People  v.  Cannon,  139  N.  Y.  82, 
the  same  court  held  that  the  State  Legislature  has  power  to  enact  that  r  ven 
in  criminal  actions,  wliere  certain  facts  have  been  proved,  they  shall  be 
jjrtH/a/octe  evidence  of  the  main  fact  in  question,  but  that  the  fact  upon 
which  the  presumption  is  to  rest  must  have  some  fair  relation  to  or  natural 
connection  with  tlie  main  fact,  ami  that  the  inference  of  the  existence  of 
the  main  fact  because  of  the  existence  of  the  fact  proved  must  not  be  purely 
arbitrary,  unreoiionable,  unnatural  or  extraordinary,  and  the  accused  must 
liave  a  fair  chance  to  make  his  defense  and  to  submit  the  whole  case  to  a 
jury.  In  State  v.  Buck,  ViO  Mo.  479,  it  was  held,  after  a  full  review  of  the 
authorities,  that  a  section  of  the  statute  of  that  State  which  makes  it  a  crim- 
inal offense  for  an  officer  of  a  banl:  to  receive  a  deposit  knowing  the  bank 
to  be  insolvent,  and  providing  tha'j  subsequent  failure  of  the  bank  shall  be 
prima  facie  evidence  of  stich  knowledge,  is  not  violative  of  a  constitutional 
provision  that,  'the  right  of  trial  by  jury,  as  heretofore  enjoyed,  shall  re- 
main inviolate.' 

*'  Plaintiffs  in  error  call  attention  to  Berwick  v.  People,  13  R,  I.  811,  and 
other  cases,  which  apparently  announce  a  rule  somewhet  \n  conflict  with 
that  held  in  the  authorities  we  have  cited.  They  seen: ,  however,  to  be 
against  the  weight  of  authority.  At  all  events,  this  court  w  committed  to 
the  doctrine  as  lield  in  New  York,  Missouri  and  other  States,  that  the  Legis- 
lature may  provide  tliat  a  designated  fact  or  facts  shall  be  prima  facie  evi- 
dence of  a  certain  other  fact,  but  subject  to  the  restrictions  stated  in  the 
authorities  to  which  reference  has  been  made.  In  Chicago,  Burlington  & 
Qiiincff  Railroad  Co.  v.  Jones,  149  III.  361,  we  said  (p.  382):  'It  is  argued 
that  the  provision  of  the  statute  making  the  schedule  of  the  commissioners 
2)rima  facie  evidence  that  the  rates  therein  fixed  are  reasonable  maximum 
rates  of  charges,  is  unconstitutional  and  void,  not  only  as  depriving  the 
carriers  of  their  property  without  due  process  of  law,  but  as  infringing 
upon  the  right  of  trial  by  jury.  We  do  not  think  that  this  objection  should 
be  sustained.  In  the  first  place,  the  act  does  not  deprive  the  railroad 
corporations  of  tVie  right  to  have  a  judicial  determination  of  the  reasonable- 


88 


AMERICAN  CRIMINAL  REPORTS. 


ness  of  the  rates,  if  they  are  not  satlsfled  with  the  schedule  made  by  the 
commission.  The  courts  are  open  to  tliem  for  a  review  of  the  acta  of  tlie 
commissioners  in  fixing  tlie  rates  of  cli-irges.  In  tlie  next  place,  the  pro- 
vision is  an  exercise  by  the  Legislature  of  its  undoubted  pt)wer  to  prescribe 
the  rules  of  evidence.  (2  Rice  on  Evidence,  pp.  806,  807;  Commonwealth  v. 
Williama,  6  Gray,  1;  State  v.  Harley,  64  Me.  562.)  Such  provisions  are  not 
unusual.  Cases  have  arisen  in  tliis  State  under  a  statute  making  the  fact 
of  injury,  caused  by  sparks  from  a  locomotive  passing  along  tlie  road, 
prima  fade  evidence  of  negliRence,  and  no  question  has  ever  been  raised  as 
to  the  validity  of  tlie  statute.  •  *  •  Acts  making  tax  deeds  prima 
facie  evidence  of  the  regularity  of  proceedings  antecedent  to  the  deed 
have  been  held  to  be  valid.  2  Rice  on  Evidence,  p.  607;  Hand  v.  Ballon,  12 
N.  Y,  641;  Delaplaine  v.  Cook,  7  Wis.  54;  Allen  v.  ArmHtrong,  16  Iowa, 
608;  Wright  v.  Dunham,  18  Mich.  414;  Gage  v.  Curaher,  125  lU.  447.' 
See,  also,  Chicago  and  Alton  Railroad  Co.  v.  People  ex  rel.,  67  111.  11.  And 
in  American  Trust  and  Savings  Bank  v.  Gueder  &  Paeschke  Manf.  Co., 
150  111.  836,  where  the  same  statute  now  in  question  was  under  considera- 
tion, it  was  held  that  in  cases  where  said  statute  applies,  the  receipt  of  the 
deposit  is  prima  facie  proof  of  fraudulent  intent,  and  that  the  rule  of  evi- 
dence established  by  the  statute  applies  both  to  criminal  prosecutions  and 
civil  proceedings,  and  wherever  acts  done  in  contravention  of  the  provis- 
ions of  the  statute  are  the  i  ubject  of  judicial  investigation. 

"  If  one  is  a  banker  or  pei-son  doing  a  banking  business,  and  receives  on 
deposit  the  money  of  his  customer,  it  is  to  be  presumed  that  he  knows,  at 
tile  time  of  recei^ng  such  deposit,  whether  or  not  he  is  solvent.  At  all 
events,  as  he  holds  himself  out  to  the  public  and  to  his  customers  as  being 
possessed  of  money  and  capital,  and  therefore  to  be  safely  trusted,  it  is  his 
duty  to  know,  and  he  is,  under  all  ordinary  circumstances,  bound  to  know, 
that  he  is  solvent,  and  it  is  criminal  negligence  for  him  not  to  know  of  his 
own  insolvency.  The  Criminal  Code  (p.ar.  280)  declares  that  a  criminal  of- 
fense consists  in  a  violation  of  a  public  law,  in  the  commission  of  which 
there  shall  be  a  union  or  joint  operation  of  act  and  intention,  or  criminal 
negligence.  In  cases  of  the  failure,  suajiension  or  involuntary  liquidation 
of  a  banker  within  thirty  days  after  he  has  received  a  deposit  from  his  cus- 
tomer, it  can  not  fairly  be  said  that  the  fact  of  such  failure,  suspension  or 
involimtary  liquidation  does  not  tend  to  show  that  he  was  insolvent  when 
he  received  the  deposit;  and  since,  if  he  was  then  insolvent,  he  is  presumed 
to  have  known  of  such  insolvency  at  that  time,  and  it  is  criminal  negli- 
gence, under  all  ordinary  cu-cumstances,  for  him  not  then  to  have  known 
of  it,  the  inference  that  when  he  received  such  deposit  it  was  with  a  fraud- 
ulent intent  on  his  part,  is  not  so  purely  arbitrary,  unreasonable,  unnatural, 
or  extraordinary  as  would  justify  the  courts  in  saying  that  such  a  failure 
within  thirty  days  had  no  faur  relation  to  or  connection  with  the  existence 
of  a  fraudulen'-  intent  at  the  time  of  the  deposit,  and  that,  therefore,  the  act 
of  the.  Legislature  is  unconstitutional,  null  and  void.  The  words  of  the 
statute,  'prima  fade  evidence,'  ex  vi  termini  imply  that  the  fraudulent 
intent  may  be  rebutted  by  any  competent  testimony.  It  is  only  in  a  very 
clear  case  that  the  courts  will  assume  to  declare  the  invalidity  of  a  statute 
enacted  by  the  Legislature,  and  no  clear  and  palpable  case  of  invalidity  here 
appears." 

Statutes— How  far  rule  of  strict  construction  of  a  penal  statute  controls. 


CARR  V.  STATE. 


80 


— The  rule  of  strict  construction  of  a  penal  statute  Is  not  violated  by  giving 
its  words  a  reasonable  meaning  according  to  the  sense  in  which  they  wjre 
intondcd,  disregarding  captious  objections  and  even  the  demands  of  e::uct 
grammatical  propriety.    Mcadowcroft  et  al.  v.  People,  108  111.  50. 

Indictment— Of  banker  receiving  deponit  while  insolvent.— An  indictment 
against  a  banker  for  receiving  a  deposit  while  insolvent,  in  the  terms  and 
language  of  the  statute,  need  not  expressly  aver  the  intent  of  tl:'~  defend- 
ant, at  the  time  of  receiving  the  money,  to  defraud  the  depositor,  especially 
where  it  charges  that  the  act  was  corruptly,  willfully,  fraudulently  and 
feloniously  done.    Id. 

Same— Averment  that  money  tms  received  ana  deposit.-  \i\  indictment 
charging  the  receipt  by  bankers  of  moneys  of  the  peraon  named,  "  thennTid 
there  not  bein^  iijdebted  to"  such  bunkers,  sutiiciently  charge3  tli. ';  the 
money  was  received  as  bankers  and  as  a  general  bank  deposit.    Id. 

Sail,  —Banking  partners— Averment  of  inaolvency. — An  indictment 
against  persons  doing  a  banking  business  under  a  firm  name,  for  receiving 
a  deposit  while  insolvent,  need  not  charge  that  ^'n  partnership,  as  such, 
was  insolvent,  as  the  partnership  is  not  a  legal  eutily,  distinct  from  and  in- 
dependent of  the  persons  composing  it.    Id. 

Effect  of  elapsing  of  several  terms,  after  indictment,  on  right  of  defend- 
ant to  discharge.— DatendantH  in  a  criminal  case  are  net  entitled  to  dis- 
ciiarge  for  want  of  prosecution  because  they  were  no<;  tried  for  several 
terms  after  their  indictment,  where  they  were  out  on  bail  and  never  ap- 
peared in  court  until  the  term  at  which  they  were  tried,     Id. 

Verdict — When  not  defective  as  fixing  a  joint  puniiiiment  for  two  de- 
fendants.—A  verdict  finding  two  bankei-s  guilty  of  embezzlement  in  re- 
ceiving a  deposit  while  insolvent,  and  fixing  their  punishment  at  a  fine  of 
twenty-eight  dollars  and,  in  addition,  at  imprisonment  for  one  year,  is  not 
defective  as  fixing  a  joint  instead  of  a  several  punishment,  but  imposes 
upon  each  the  fine  and  imprisonment  stated.    (Phillips,  J.,  dissenting.)  Id. 

The  simple  act  of  taking  a  deposit  while  insolvent  does  not  complete 
statutory  offense. — A  banker  is  not  guilty  of  embezzlement,  under  the  stat- 
ute for  the  protection  of  depositors  (Laws  of  1879,  p.  113),  by  the  simple  act 
of  taking  a  deposit  while  insolvent,  but,  to  complete  the  offense,  such  de- 
posit, or  some  part  of  it,  must,  by  the  failure,  suspension  or  involuntary 
liquidation  of  the  banker,  be  lost  to  the  depositor.     Id. 

Same.— That  part  of  a  deposit  taken  by  a  banker,  while  insolvent,  which 
such  banker  pays  out  upon  the  depositor's  checks  before  failure,  suspension 
or  involuntary  liquidation,  is  not  "  lost"  to  such  depositor  within  the  mean- 
ing of  the  statute.    Id. 

Same — Loss  of  entire  deposit  not  necessary  to  constitute  crime. — Loss  of 
the  entire  amount  of  a  deposit  taken  by  a  banker,  while  insolvent,  is  not 
necessaiy  to  complete  the  crime  of  embezzlement,  under  the  act  for  the 
protection  of  depositors.    Id. 

Sa?»ie—W7ien  crime  compZete.— The  crime  created  by  the  act  for  the  pro- 
tection of  depositors  is  complete  when  the  insolvent  banker  fraudulently 
receives  the  deposit,  and  by  his  failure,  suspension  or  involuntary  liqui- 
dation, by  reason  of  insolvency,  the  depositor  is  deprived  of  the  whole  or 
some  portion  of  such  deposit.    Id. 

Tender  of  deposit  by  banker  no  defense. — Tender  by  a  banker  to  a  depos- 
itor of  the  amount  of  his  deposit  at  the  time  of  the  banker's  trial  for  em- 


90 


AMERICAN  CRIMINAL  REPORTS. 


bezzlpment,  in  receiving  such  deposit  while  insolvent,  will  not  relieve  him 
from  liability  under  the  statute.    Id. 

Evidence— Diposit  of  money  presumed  to  he  flrenera/.— A  deposit  of  money 
with  bankers  at  their  banking  house  is  presumed  to  be  general  unless  it  ap- 
pears that  the  depositor  makes  it  special,  or  deposits  it  in  some  particular 

cajiacity.    Id. 

Same— What  proof  supplies  want  of  formal  demand  by  depositor.— 
Pr(x)f  of  a  demand  for  the  deposit  is  not  essential  to  conviction  of  a  banker 
under  the  statute  of  1879,  where  it  is  shown  that  such  banker  suspended 
payment  and  closed  his  doors  against  depositors  and  creditore  and  discon- 
tinued banking  operations.    Id. 

Appeals  atvd  errors— When  omission  of  a  jury  to  find  fact  will  not  re- 
i,e,..se. —Failure  of  a  verdict  against  a  banker,  under  the  act  of  1879,  for  re- 
ceiving a  deposit  when  insolvent,  to  state  the  valueor  amount  of  the  deposit, 
is  not  cause  for  revei-sal  where  the  fine  fixed  by  tlie  jury  is  much  less  than 
it  should  have  been  imdcr  the  evidence  and  the  law.  (PHiti.iPS,  J.,  dis- 
senting.)   Id, 


Statk  v.  Allrick. 

(61  Minn.  415.) 

Bastakdy  :    Evidence— Instructions. 

1.  In   a  prosecution  for  bastardy,  where   the  undisputed  evidence  was 

that  the  child  was  fully  developed  nt  its  birth,  the  defendant  was  en- 
titled to  an  instruction  that  it  must  have  been  begotten  more  than  235 
days  before  that  date. 

2.  Where  the  evidence  tended  to  prove  that  the  complainant  had  inter- 

course with  another  man  at  or  about  the  time  the  child  must  have  been 
begotten,  and  about  the  time  she  testified  to  having  intercourse  with 
the  defendant,  the  defendant  was  entitled  to  an  instruction  that  even 
if  he  had  intercourse  with  complainant,  as  alleged,  yet  unless  the  jury 
found,  from  a  preponderance  of  evidence,  that  such  intercourse  resulted 
in  pregnancy,  they  must  find  defendant  not  guilty. 

Appeal  by  defendant  from  an  order  of  the  District  Court  for 
Mower  County,  John  Whytock,  Judge,  denying  a  motion  for 
a  new  trial. 

Erick  A.  Allrick  was  convicted  of  bastardy,  and  appeals. 
Reversed. 

Henry  J.  Gjertsen,  for  appellant. 

French  &  Wright  and  S.  D.  Catherwood,  for  respondent. 


\--Sk 


STATE  V.  ALLRICK. 


91 


AfiTCHKLt,  J.  This  was  a  prosecution  under  the  bastardy 
act  (Gen.  St.  1801,  §  2039  et  seq.)  The  female,  in  her  com- 
plaint, alleged  that  the  child  was  begotten  on  the  9th  day  of 
September,  1892.  The  uncontradicted  evidence  was  that  the 
child  was  born  on  March  2-1,  1893,  and  was,  at  the  time  of  its 
birth,  "  a  full  grown  child,  and  weighed  nine  pounds."  Upon 
the  trial  the  female  testified  that  the  first  time  she  had  inter- 
course witli  the  defendant  was  between  3  and  4  o'clock  in  the 
afternoon  of  Sunday,  the  19th  day  of  June,  1892;  that  the  next 
time  was  on  the  1st  day  of  August;  that  there  were  two  other 
times  during  the  summer,  after  August  1st,  four  times  in  all; 
that,  the  last  time  was  in  the  second  week  of  September,  1892. 
She  then  testified  that  she  discovered  the  last  of  June  that  she 
was  pregnant.  The  defendant  testified  that  he  did  not  have' 
any  sexual  intercourse  with  the  complainant  on  the  19th  of 
June,  or  at  any  time  during  the  months  of  June  and  July,  or 
at  any  time  previous  to  August  15, 1892.  There  was  evidence 
tending  to  prove  that  the  complainant  had  intercourse  with 
another  man  on  the  22d  of  June,  1892,  but  the  above  was  all 
the  evidence  as  to  iier  intercourse  with  the  defendant. 

Upon  this  state  of  the  evidence,  counsel  for  the  defendant 
requested  the  court  to  instruct  the  jury,  in  substance,  (1)  that  if 
they  found  that  he  did  not  have  intercourse  with  the  complain- 
ant previous  to  July  1,  1892,  they  must  find  him  not  guilty;  (2) 
that  even  if  they  found  that  he  had  intercourse  with  her  in 
June,  1892,  yet  unless  they  found,  from  a  preponderance  of 
evidence,  that  such  intercourse  resulted  in  pregnancy,  they 
must  find  defendant  not  guilty.  These  requests  were  both  re- 
fused, and  such  refusals  are  assigned  as  error.  We  are  of 
opinion  that,  under  the  state  of  the  evidence,  both  requests 
should  have  been  granted. 

It  can  not  be  assumed,  for  the  purpose  of  convicting  the  de- 
fendant, that  the  complainant  testified  falsely.  He  must  be 
convicted,  if  at  all,  on  the  evidence  actually  given  in  court. 
The  complainant  definitely  fixed  the  date  of  her  first  inter- 
course with  defendant,  on  June  19th,  and  the  next  on  August 
1st.  The  duration  of  pregnancy  in  woman,  assuming  the  de- 
livery is  not  proanature,  is,  according  to  general  medical  and 
popular  observation,  about  nine  calendar  months,  or,  to  be  more 
precise,  ten  lunar  months,  or  280  days.  Some  medical  au- 
thorities fix  the  average  at  276  days.    All  the  authorities  agree 


92 


AMERICAN  CmMINAL  REPORTS. 


that  the  length  of  time  varies  somewhat,  being  sometimes 
greater  and  sometimes  less  than  the  usual  or  average  period. 
Hence,  within  certain  limits,  the  time  when  a  child  was  begot- 
ten ia  a  question  of  fact.  But  the  shortest  known  period  of 
gestation,  in  case  of  a  fully-developed  child,  is  considered  to  be 
about  200  da,ys,  while  in  some  exceptional  cases  gestation  has 
been  protracted  to  about  300  days.  If  this  child  was  begotten 
on  or  after  August  1st,  then  the  period  of  gestation  could  not 
have  exceeded  235  days,  or  from  40  to  45  days  less  than  the 
usual  period.  It  is  a  matter  of  common  knowledge,  of  which 
we  have  a  rigiit  to  take  judicial  notice,  that  if  the  period  of 
gestation  was  only  235  days,  or  less,  the  delivery  would  be 
premature,  and  the  child  would  not  be  fully  developed  at  its 
birth.  Hence,  upon  the  evidence,  the  court  could  and  should 
have  held,  as  a  matter  of  law,  that  this  child  was  not  begotten 
after  August  1st. 

If  the  evidence  had  tended  to  show  that  the  illicit  intercourse 
between  the  complainant  and  the  defendant  had  been  repeated 
at  short  intervals  from  and  after  June  19th,  the  first  request 
would  have  been  properly  refused.  But,  as  the  e  vide  ace  stood, 
the  request  was  equivalent  to  one  to  instruct  the  jury  that,  if 
they  found  that  defendant  had  no  sexual  intercourse  with  tiie 
complainant  before  August  1st,  they  must  find  him  not  guilty. 
As,  under  the  evidence,  the  child  must  have  been  begotten 
before  that  date,  such  an  instruction  ought  to  have  been  given. 

The  second  request  should  also  have  been  granted.  The 
evidence  tended  to  show  that  the  complainant  had  intercourse 
with  another  man  at  or  about  the  very  time  the  child  was  pre- 
sumably begotten,  and  only  three  days  after  she  testified  that 
she  had  intercourse  with  the  defendant.  The  charge  against 
the  defendant  was  not  fornication,  but  the  paternity  of  the 
child.  Although  he  had  intercourse  with  the  complainant  in 
June,  yet  if  such  intercourse  did  not  result  in  pregnancy,  or  if 
the  state  failed  to  prove  it  by  a  fair  preponderance  of  evidence, 
the  defendant  was  entitled  to  an  acquittal.  If  there  had  been 
no  evidence  of  her  intercourse  with  any  one  but  defendant, 
there  would  have  been  no  difficulty  in  drawing  the  conclusion 
that  he  was  the  father  of  the  child.  But,  if  she  had  exposed 
herself  to  the  embraces  of  other  men  at  or  about  the  time  she 
became  pregnant,  she  had  placed  it  out  of  her  power,  or  that 
of  the  jury,  to  say  who  was  the  father  of  the  child.    At  least, 


WEATHERMAN  v.  COMMONWEALTH. 


93 


if  the  jury  were  unable  to  determine  from  a  preponderance  of 
evidence  that  defendant  was  the  father  of  the  child,  they  were 
bound  to  find  him  not  guilty,  and  the  court  ou(?ht  to  have  so 
instructed  them. 

There  are  other  assignments  of  error,  but,  as  there  must  be  a 
new  trial  for  the  reasons  already  given,  it  becomes  unneces- 
sary to  refer  to  them,  except  to  say  that  we  find  no  other  prej- 
udicial error  in  the  record.    Order  reversed. 

Note. — Witness— Cross-examination. — Where,  on  prosecution  for  bas- 
tardy, the  prosecuting  witness  testifies  tliat  the  defendant  is  the  father  of  tlie 
child,  whicli  defendant  denies,  and  on  cross-examination  she  testifies  that 
she  never  had  intercourse  with  any  other  man,  evidence  of  intercourse 
with  other  men  at  or  about  the  time  testified  that  the  child  was  begotten  is 
admissible  to  impeach  her.    State  v.  Perkins,  117  N.  C.  698. 

Costs  in  case  of  acquittal. — Costs  in  a  bastardy  case,  in  event  of  an  acquit- 
tal, can  not  be  taxed  against  the  county;  the  statute,  fixing  costs  therein, 
failing  to  make  any  one  bound  therefor  in  such  event,  and  bastardy  being 
the  subject  of  civil  proceeding,  so  that  costs  can  not  be  assessed  against 
the  county,  as  in  criminal  proceedings,  and  the  state  or  county  not  being 
bound  for  costs,  even  by  legal  provisions,  unless  specifically  or  by  necessary 
implication  named  or  referred  to  therein.    State  v.  Blackburn,  61  Ai-k.  407. 

Security  from  pauper  coJivict. — Code,  §  1235,  authorizing  appeal  by  a 
convicted  pauper  without  giving  security  for  costs,  does  not,  by  requiring 
on  affidavit  that  he  is  advised  by  counsel  that  he  has  reasonable  ground 
of  appeal,  require  the  name  of  the  advising  counsel  to  be  given.  State  v. 
Perkins,  117  N.  C.  698. 


Weatherman  v.  Commonwealth. 


(91  Va.  796.) 
Bill  of  Exceptions  :    Record  of  proceeding— Signature  hy  judge. 


1.  The  Code,  1887,  requires  that  the  proceedings  of  court  for  each  day  shall 
be  drawn  up  at  large,  entered  in  a  book,  and  read  in  open  court,  except 
on  the  last  day  of  the  term,  when  they  shall  be  drawn  up  and  read  the 
same  day;  and  that,  after  being  corrected,  the  record  shall  be  signed 
by  the  presiding  judge.  Held,  that  where  the  proceedings  of  the  last 
day  of  the  term  are  signed  by  the  judge,  his  failure  to  sign  the  orders 
on  the  day  a  verdict  of  guilty  was  rendered,  will  not  avoid  the  verdict 
and  judgment  entered  thereon. 

3.  A  judge  may  sign  a  day's  proceedings  in  the  order  book  at  the  next  term 
nunc  pro  tunc. 

8.  The  signature  by  the  judge  of  any  day's  proceedings  in  the  order  book 
need  not  be  in  the  presence  of  one  against  whom  a  verdict  of  guilty 
was  rendered  on  such  day. 


94  AMERICAN  CRIMINAL  REPORTS. 

W.  D.  Tomphins&nd  John  N.  Opie.,  for  plaintiff  in  error. 

B.  Taylor  Scott,  Attorney-General,  for  the  Commonwealth. 
I 

RiELT,  J.  This  case  is  before  us  upon  a  rehearing,  which 
was  granted  upon  an  assignment  of  error  that  was  not  passed 
upon  in  the  opinion  of  the  court  delivered  at  the  June  torm, 
1894. 

We  concur  in  the  opinion  of  the  court,  delivered  by  Judge 
Lacy,  upon  the  former  hearing,  which  affirmed  the  judgment 
of  the  circuit  court;  and  it  is  only  necessary,  therefore,  to  pass 
upon  the  single  error  assigned  in  the  petition  for  a  rehearing. 

It  appears  that  the  judge  of  the  circuit  court  omitted  to  sign, 
during  the  term,  the  orders  of  the  court  of  the  day  on  which 
the  jury  returned  their  verdict  of  guilty  against  the  accused, 
and  this  is  the  ground  of  error  on  which  the  petition  for  the 
rehearing  is  based. 

It  appears  from  the  record  that  all  the  steps  taken  and  pro- 
ceedings had  in  the  trial  of  the  accused  on  that  day,  as  well  as 
on  the  other  days  during  which  the  trial  progressed,  are  wholly 
regular  and  in  due  form,  and  the  only  irregularity  is  the 
omission  of  the  judge  to  affix  his  signature  to  the  record  of 
that  day's  proceedings.  Is  this  an  error  for  which  the  judf. 
ment  of  the  Circuit  Court  should  be  reversed?  Section  3114 
of  the  Code  is  as  follows : 

"  The  proceedings  of  every  court  shall  be  entered  in  a  book, 
and  read  In  open  court  by  the  clerk  thereof.  The  proceedini»'8 
of  each  day  shall  be  drawn  up  at  large  and  read  during  that 
term,  except  those  of  the  last  day  of  a  terra,  which  shall  be 
drawn  up  and  read  the  same  day.  After  being  corrected 
where  it  is  necessary,  the  record  shall  be  signed  by  the  pre- 
siding judge." 

The  statute  does  not,  in  express  terms,  prescribe  that  the 
orders  of  each  day  of  a  term  of  the  court  shall  be  separately 
signed,  but  that  is  the  reasonable  inference  to  bo  deduced 
from  its  language,  and  this  is  the  general  practice  of  the 
courts.  The  orders  and  proceedings  of  each  day  in  a  case 
are  entered  by  the  clerk  in  the  order  book  under  the  direction 
of  the  court.  These  entries  constitute  the  evidence  of  such  of 
the  proceedings  as  have  taken  place,  and  such  of  the  orders  as 
have  been  made  by  the  court  during  the  progress  of  the  trial 
as  it  is  necessary  should  appear  in  the  record,  and  the  signa- 


WEATHERMAN  v.  COMMONWEALTH. 


95 


ture  of  the  judge  to  the  record  authenticates  thera  and  estab- 
lishes their  genuineness.  •  This,  we  apprehend,  is  likewise  the 
effect  upon  all  of  the  proceedings  and  orders  of  the  term  of 
the  signature  of  the  judge  to  the  proceedings  of  the  last  day 
thereof.  All  entries  made  in  the  order  book  during  the  term, 
which  precede  the  signature  of  the  judge,  are  thereby  authen- 
ticated. And  as  the  proceedings  on  'the  subsequent  days,  in- 
cluding the  last  day  of  the  term  at  which  the  accused  in  the 
case  at  bar  was  convicted,  were  duly  signed,  the  omission  of 
the  judge  to  sign,  separately,  the  record  of  the  proceedings  of 
the  day  on  which  the  verdict  of  the  jury  was  returned  to  the 
court  and  recorded,  can  not  invalidate  the  verdict  of  the  jury 
or  the  judgment  of  the  court.  No  order  made  by  the  court  or 
proceeding  had  in  a  case  during  a  term,  and  entered  by  the 
clerk  in  the  record  book,  should  be  allowed  to  become  invalid 
or  to  fail  of  effect  by  the  omission  of  the  judge,  through  inad- 
vertence or  neglect,  to  sign  the  record  of  the  orders  and  })ro- 
ceedings  of  the  day  on  which  it  was  made  or  took  place. 
Judge  Staples,  in  commenting  on  the  statute  prior  to  its 
amendment,  .in  Quinn  v.  Com.,  20  Grat.  143,  said :  "  Bui  the 
failure  of  the  judge  to  comply  with  the  directions  of  the 
statute  could  not  impair  the  rights  of  the  commonwealth,  or 
those  of  a  citizen  in  the  record,  as  an  instrument  of  evidence, 
or  a  muniment  of  title,  or  an  absolute  guaranty  against  a 
second  prosecution  and  conviction  for  an  offense  already  passed 
upon  by  a  jury.  Had  the  petitioners  been  acquitted,  they 
could  never  have  been  questioned  a  second  time  for  the  same 
offense,  although  the  judge  had  failed  to  sign  the  record.  In 
the  event  of  such  failure,  or  a  refusal  on  his  part  to  do  so,  he 
might  be  compelled  by  mandamus  to  perform  that  duty." 

It  is  the  apparent  intention  of  the  statute  that  each  day's 
proceedings,  when  read  and  corrected,  where  it  is  necessary 
(which,  under  the  statute,  may  be  done  during  the  term), 
should  be  separately  signed;  and,  while  we  do  not  deem  this 
essential  to  the  validity  of  the  proceedings,  where  the  record 
is  signed  by  the  judge  at  the  close  of  the  term,  yet  there 
should  be  no  laxity  in  this  respect,  but  the  intention  of  the 
statute,  for  good  and  obvious  reasons,  should  be  rigorously 
observed  and  obeyed. 

That  which  was  intimated  in  the  quotation  from  the  opin- 
ion in  Qmnn  v.  Com.,  siipra,  that  where  the  judge  has  failed 


96 


AMERICAN  CRIMINAL  REPORTS. 


to  sign  the  record,  he  might  be  compelled  by  mandamus  to  do 
BO,  the  judge  of  the  Circuit  Court  did  voluntarily  in  the  case 
at  bar.  At  the  next  succeeding  term  of  the  court,  upon  his 
attention  being  called  to  the  omission,  he  then,  with  the  fol- 
lowing recorded  statement,  "  Having  inadvertently  failed  to 
sign  this  day's  orders,  and  my  attention  being  now  for  the 
first  time  called  to  the  fa«t  of  the  omission,  I  now,  on  this  9th 
day  of  November,  1892,  sign  the  same  now  for  then,"  affixed 
his  signature  thereto  nunc  pro  tunc.  There  could  certainly 
be  no  illegality  in  doing  voluntarily  what  he  could  have  been 
compelled  to  do. 

The  power  of  the  courts  to  make  entries  of  judgments  and 
orders  nune  pro  tunc  in  proper  cases,  and  in  furtherance  of 
the  ends  of  justice,  has  been  recognized  and  exercised  from 
the  earliest  times;  and  the  period  in  which  the  power  may  be 
exercised  is  not  limited.  Freem.  Judgm.,  §  56;  1  Black,  Judgm., 
§§  126,  131;  16  Am.  «fe  Eng.  Enc.  Law,  1005,  and  note  thereto; 
Mitchell  V.  Overman,  103  II.  S.  62;  and  Allen  v.  Bradford,  37 
Am.  Dec.  689.  And  this  power  may  be  exercised  as  well  in 
criminal  prosecutions,  as  in  civil  cases.  Freeman  on  Judg- 
ments, note  to  Sec.  56;  and  Burnett  v.  State,  65  Am.  Dec.  13], 
If  a  court  would  have  the  right  to  enter  a  judgment  and  au- 
thenticate the  record  thereof  now  for  then,  it  follows  as  clearlv, 
as  the  greater  includes  the  less,  the  whole  a  part,  that  the 
judge  may  sign  in  like  manner  the  record  of  a  judgment  ren- 
dered, or  a  proceeding  had  at  a  previous  term,  and  duly  en- 
tered by  the  clerk  upon  the  order  book. 

But  it  is  further  objected  that  the  orders  were  signed  by 
the  judge  in  absence  of  the  accused.  This  was  not  error. 
Signing  the  record  of  the  proceedings  of  the  court  was  not  a 
step  in  the  prosecution  of  the  accused,  or  any  part  of  his  trial. 
It  was  simply  the  authentication  by  the  signature  of  the  judge 
of  the  orders  and  proceedings  that  were  made  and  had  that 
day  in  the  trial  of  the  accused,  when,  as  the  record  clearly 
shows,  he  was  present  in  person.  There  is  no  error  in  the 
judgment  of  the  Circuit  Court,  and  it  must  be  affirmed. 

Note.— ftotoer  of  court  to  suspend  or  modify  sentence.— After  being  sen- 
tenced to  five  years'  imprisonment,  and  serving  six  days,  defendant  was 
brought  before  the  court  during  the  same  term,  and,  on  liis  agreeing  to  pay 
into  court  the  costs  of  prosecution,  judgment  was  suspended.  Held,  that 
the  court  had  power  at  a  subsequent  term,  on  defendant's  failure  to  pay 


STATE  V.  CALLAHAN. 


97 


Buoh  costs,  to  sentence  him  to  imprisonment  for  one  year.  State  v.  Whitt, 
117N.  C.  804. 

Mr.  Justice  Montgomery,  commenting  on  the  facts,  says:  "  A  court  may 
suspend  judgment  upon  the  understanding  tliat  a  defendant  will  compen- 
sate an  injured  party  by  payment  of  money,  but  it  adds  no  force  to  such  a 
condition  to  make  it  a  matter  of  record.  Tlie  collection  of  sucli  damages 
can  not  be  enforced  by  imprisonment  without  coming  in  conflict  with  the 
constitutional  inhibition  against  imprisonment  for  debt.  When  a  judg- 
ment has  been  suspended  on  the  agreement  of  the  .defendant  to  pay  the 
costs,  and  the  costs  have  not  been  paid,  the  judgment  may  be  enforced  for 
such  failure."    State  v.  Crook,  115  N.  C.  760. 

For  an  exhaustive  review  of  the  authorities  in  respect  to  the  power  of 
courts,  including  the  right  of  a  person  to  be  released  from  imprisonment  on 
habeas  corpus,  see  People  ex  rel.  Gilbert  v.  James  Pease,  Sheriff,  Chi.  Law 
Journal,  1895,  p.  243. 


State  v.  Callahan. 

(47  La.  Ann.  444.) 

Bribery  :    Testimony  of  accomplice — Corroboration — Evidence  of  truth- 
fulness— Construction  of  statute — Alternative  offenses, 

1.  The  circumstance  of  an  accomplice  having  told  the  truth  about  irrel- 
evant and  immaterial  things,  which  have  no  tendency  to  confirai  the 
material  parts  of  his  testimony  involving  the  guilt  of  the  accused,  is  not 
admissible  in  evidence  for  the  purpose  of  sustaining  the  veracity  of 
such  accomplice,  notwithstanding  a  further  basis  has  been  laid  for  his 
impeachment. 

■thou  a  criminal  statute  contains  separate  and  distinct  denunciations 
■-•■;.-:; inat  two  separate  and  distinct  classes  of  offenders,  in  the  alternative, 
in  one  continuous  and  unbroken  sentence,  such  statute  must  receive 
such  construction  as  to  give  effect  to  all  of  its  provisions,  in  the  sense 
evidently  intended  by  the  Legislature  in  its  enactment.  NichoUs,  C.  J., 
and  Breaux,  J.,  dissenting. 

Appeal  from  Criminal  District  Court,  Parish  of  Orleans; 
James  C.  Moise,  Judge. 

John  T.  Callahan  was  convicted  of  having  received  a  bribe 
as  a  member  of  a  city  council,  and  appeals.    Eeversed. 


C.  H.  <&  C.  0.  Lusenherg^  A.  D.  Henriquea^  James  C.  Walker 
and  Evans  <&  Dunn,  for  defendant  and  appellant. 

M.  J.  Cunningham,  Attorney-General,  Charles  A.  Butler, 
District  Attorney,  and  John  J.  Finney,  Assistant  District  At- 
torney, and  Lionel  Adatns  for  the  State. 
7 


98 


AMERICAN  CRIMINAL  REPORTS. 


Watkins,  J.  The  defendant  was  convicted  of  the  crime  of 
having  received  a  bribe  within  the  meaning  of  the  bribery 
statute  of  lt>{>t>,  and  prosecutes  this  appeal  from  a  sentence  to 
five  years'  imprisonment  at  hard  labor  in  the  state  penitentiary. 

The  charge  of  the  indictment  is  that  the  defendant,  being  a 
member  of  the  Common  Council  of  the  city  of  New  Orleans, 
and,  as  such,  a  municipal  officer  thereof,  on  the  7th  of  Novem- 
ber, 1893,  feloniously  did  receive  from  one  Lyman  S.  Widney 
the  sum  of  $'M)  as  a  bribe,  present,  or  reward,  for  the  purpose  of 
influencing  him,  as  such  officer,  to  vote  and  exercise  the  power 
in  him  vested,  and  to  perform  a  duty  of  him  required,  with 
partiality  anil  favor.  During  the  progress  of  the  trial  quite  a 
number  of  bills  of  exception  Avere  taken  on  the  part  of  the 
defendant  to  various  rulings  of  the  trial  judge,  to  which  we 
will  give  our  attention  in  the  order  of  their  occurrence  and 
importance. 

The  first  question  in  importance,  and  to  which  the  counsel 
on  either  side  have  devoted  their  arguments  chiefly,  is  that 
which  relates  to  the  admission  in  evidence  of  the  check  and 
stub  of  the  check  in  the  check  book,  and  the  entries  made  by 
the  book-keeper  in  the  cash  book,  of  the  Pennsylvania  Coal 
Company,  of  which  Lyman  S.  "Widney  was  agent. 

This  question  bcicame,  in  due  course  of  proceedings,  the  sub- 
ject of  three  bills  of  exception,  which  are  numbered  in  the 
transcript,  res))ectively,  5,  6,  and  7,  all  of  which  are,  by  the 
State's  counsel,  cumulated,  and  argued  in  their  brief,  collect- 
ively. 

L.  S.  Widney  being  on  the  stand  at  the  instance  of  the 
State,  and  on  cross-examination  by  the  defendant's  counsel,  the 
basis  h'aving  been  laid  for  his  impeachment,  counsel  for  the 
State  handed  to  him  the  aforesaid  check  book,  and  asked  him 
•  if  the  item  exhibited  to  him  was  the  stub  entry  for  the  check 
of  $500  mentioned  in  his  testimony,  as  having  been  drawn  for 
the  purpose  of  getting  the  money  that  was  paid  to  the  defend- 
ant. To  this,  counsel  for  the  defendant  objected,  because  the 
offer  was  of  a  stub  of  a  check  book  kept  by  Widney  himself, 
and  of  which  the  defendant  had  no  knowledge,  and  was  not  a 
party  thereto;  and  further,  because  this  was  not  the  proper 
subject-matter  for  re-examination. 

This  objection  having  been  overruled  by  the  court,  and  the 
testimony  admitted,  the  defendant  retained  the  bill  of  excep- 


STATE  V.  CALLAHAN. 


99 


tions  No.  5.  The  ruling  of  the  court  on  this  question  was  as 
follows,  viz. :  "  I  regarded  the  check  and  stub  as  part  of  the 
res  gestcB.  I  make  a  distinction,  in  this  respect,  between  the 
check  and  stub  and  the  entries  in  the  books,  as  eight  days  had 
elapsed  from  the  drawing  of  the  check  up  to  the  entry  in  his 
books,  which  was  made  November  1 5th,"  etc. 

On  the  further  re-examination  of  Widney,  counsel  for  the 
State  asked  him  if  he  did  not  direct  an  entry  of  the  payment 
of  $500  on  the  books  of  the  coal  company  on  the  15th  of 
November,  and  to  that  question,  and  the  answer  proposed,  de- 
fendant objected  that  any  entry  that  Widney  would  make,  or 
cause  to  be  made,  on  his  books,  was  his  own  act. 

To  this  objection  counsel  for  the  State  replied  that,  inas- 
much as  defendant's  counsel  had  laid  a  basis  for  the  contradic- 
tion of  Widney,  it  was  then  competent  for  the  State  to  cor- 
roborate him. 

The  objection  having  been  overruled,  and  the  trial  judge 
having  admitted  the  testimony,  the  defendant's  counsel  re- 
tained the  bill  of  exceptions  No.  6. 

As  the  ruling  of  the  court  is  the  same  on  bill  of  exceptions 
No.  7,  reference  to  it  will  be,  for  the  present,  deferred. 

Thereupon,  counsel  for  the  State  offered  the  entry  in  the  cash 
book  of  the  coal  company  in  evidence;  that  is  to  say,  the  entry 
of  the  15th  of  November,  1893,  which  was  referred  to  by  Wid- 
ney, as  having  been  made  under  his  instructions,  viz.:  "  Check 
marked  in  red  ink  *93,'  dated  November  15th.  B.  D.  Wood 
and  Sons,  City  Council,  1250.00.    Improvements,  $250.00." 

In  the  course  of  the  interrogation  that  followed,  it  was  dis- 
closed that  the  writing  on  the  stub  of  the  check  was  in  the 
hand  of  Widney,  and  the  entry  in  the  cash  book  was  in  the 
handwriting  of  the  book-keeper  of  the  coal  company,  as  well  as 
the  red  marks  on  the  stub. 

William  Cruzat,  book-keeper  of  the  coal  company,  was  called 
as  a  witness  for  the  State,  and  was  interrogated  with  the  view 
and  for  the  purpose  of  corroborating  Widney,  and  in  the  course 
of  his  interrogation,  answered  that  the  entries  in  the  cash 
book  were  made  by  him  under  the  directions  of  Widney,  as 
agent  of  the  coal  company.  Thereupon  counsel  for  the  State 
offered  in  evidence  the  cash  book  and  ledger  of  the  coal  com- 
pany, and  the  aforesaid  entries  therein  of  date  November  15, 
1893,  to  which  the  defendant  objected,  because  the  entries 


100 


AMERiOAN  CRIMINAL  REPORTS. 


wero  made  therein  out  of  defendant's  presence,  and  without  his 
knowledge;  and  further,  because  Widney  could  not  be  corrob- 
orated by  his  own  books,  and  by  entries  made  in  them  in 
pursuance  of  his  instructions,  and  without  the  presence  or 
knowledge  of  the  defendant. 

These  objections  having  been  overruled,  and  the  testimony 
admitted,  defendant's  counsel  retained  the  bill  of  exceptions 

No.  7. 

Thereupon  counsel  for  the  State  proceeded  to  examine  the 
witness  Cruzat,  with  reference  to  said  entries,  etc. 

From  the  testimony  of  "Widney,  as  well  as  from  the  check; 
stub,  and  check  book,  it  appears  that  $500  were  withdrawn 
from  bank  on  the  7th  of  November,  1893— the  date  laid  in  the 
indictment — and  paid  to  the  defendant  on  that  date;  and  that 
the  payment  closed  the  transaction,  in  so  far  as  the  defendant 
was  concerned,  and  in  so  far  as  the  commission  of  the  crime 
of  bribery  is  concerned. 

And,  from  the  testimony  of  Cruzat,  the  book-keeper  of  the 
coal  company,  as  well  as  from  the  entries  in  the  cash  book  and 
ledger,  it  appears  that  he  never  dealt  with  the  check  at  all, 
nor  with  the  stub  in  the  check  book,  otherwise  than  as  di- 
rected by  Widney.  It  further  appears  that  Cruzat  was,  at  the 
time  the  check  was  drawn  and  the  money  paid  to  the  defend- 
ant, by  Widney  directed  not  to  make  any  entry  thereof  in  the 
books  of  the  coal  compan}'^  at  all,  but  to  wait  a  few  days;  and 
that  on  the  15th  day  of  November,  1893, — eight  days  after  the 
payment  was  made  to  the  defendant,  and  the  transaction 
closed, — he  was,  by  Widney,  further  directed  to  make  the  en- 
try as  it  occurs  on  the  cash  book,  and  that  he  made  same 
according  to  his  directions. 

Inasmuch  as  the  reasons  of  the  trial  judge  for  overruling 
the  defendant's  objections  to  the  foregoing  testimony,  and 
those  appended  to  the  aforesaid  last  two  bills  of  exception,  are 
very  succinctly  stated,  we  will  incorporate  them  in  their  en- 
tirety, and  take  the  liberty  of  extracting  same  from  the  brief 
of  counsel  for  the  State.    They  are  as  follows,  namely : 

"  And  be  it  further  remembered  that  the  foregoing  evidence 
and  the  testimony  of  the  witness  Lyman  S.  Widney,  a  witness 
for  the  State,  with  the  objections  and  exceptions  reserved  to 
the  ruling  of  the  court,  are  herein  set  forth  with  particularity, 


STATE  V.  CALLAHAN. 


101 


and  are  taken  from  the  stenographer's  notes  kept  and  taken  at 
the  time  said  evidence  was  given  by  the  said  wit.'sss. 

'*  And  now  the  defendant,  by  his  said  counsel,  tdn.ler  this, 
their  bill  of  exceptions,  for  signature,  and  pray  that  the  same 
be  filed,  and  made  part  of  the  record." 

Pkb  Curiam.  "  I  make  part  of  this  bill  the  written  reasons 
on  file  for  admitting  the  evidence,  the  statements  of  facts  con- 
tained therein,  the  testimony  of  L.  S.  Widnoy  and  Wm.  Cruzat, 
check  book  stub  No.  512,  of  November  7th,  check  No.  512,  for 
$500,  by  the  Pennsylvania  Coal  Co.,  on  the  Louisiana  National 
Bank,  and  the  entries  in  the  books  of  the  Pennsylvania  Coal 
Co.,*to  which  objections  have  been  made,  and  which  are  the 
sul>jocts  of  this  bill. 

"  The  entries  were  not  offered  for  the  purpose  of  corrobo- 
rating the  testimony  of  an  accomplice  as  to  tliose  facts  which 
fix  the  guilt  of  an  accused  by  identifying  and  connecting  him 
with  the  commission  of  the  crime,  but  for  the  purpose  of  con 
finning  the  witness'  narrative  of  facts,  so  far  as  possible,  in  all 
of  its  parts  in  order  to  sustain  his  veracity,  which  had  been 
assailed  in  the  manner  stated  in  the  written  reasons  filed  at 
the  time,  and  referred  to  above  as  made  part  hereof. 

"  The  evidence  was  admitted  at  that  time,  before  the  prosecu- 
tion closed,  in  order  to  protect  the  State  in  case  the  accused 
should  submit  his  case  without  offering  any  evidence,  after 
having  assailed  the  veracity  of  the  State's  only  witness  to  the 
most  material  and  essential  fact  of  the  case.  In  such  a  con- 
tingency, should  the  cause  go  to  the  jury  on  the  uncorroborated 
testimony  of  an  accomplice,  and  tbe  veracity  of  this  witness 
had  been  attacked  in  such  a  way  as  to  suggest  a  slight,  yet 
reasonable  possibility  that  his  statements  may  be  untrue,  this 
might  create  such  a  doubt  in  the  minds  of  the  jury  as  would 
prevent  them  from  basing  a  verdict  upon  such  testiraon}',  and 
the  cause  of  the  State  be  irretrievably  crippled.  As  a  matter 
of  fact  such  a  contingency  did  arise,  as  the  defense  submitted 
their  case  without  offering  any  evidence  whatever  on  the 
merits. 

"Before  admitting  the  entries  they  were  examined,  and 
found  to  contain  no  recital  which  had  even  the  semblance  of 
a  tendency  to  identify  or  connect  the  accused,  Callahan,  with 
the  receipt  of  the  money.  They  did  tend  to  confirm  Widney's 
statements  as  to  the  following  facts : 


102 


AMERICAN  CRIMINAL  REPORTS. 


" First,  as  to  tho  statement  that  he  withdrew  the  sum  of 
five  hundred  dollars  from  the  business  of  tho  Pcmnsylvania 
Coal  Co.  See  his  answers  to  questions  Nos.  351,  352,  370,  371 , 
872,  374,  375,  450,  and  471.  They  did  not  contirm  him  as  to 
what  he  did  with  the  money  after  it  was  withdrawn. 

"  Second,  as  to  Wood's  interest  in  tlie  transfer  of  the  privi- 
lege, and  his  agreement  to  pay  one-half.  See  answers  to 
questions  Nos.  48,  52,  54,  82,  «3,  84,  85,  86,  619,  620,  621. 

"Third,  that  tins  agreement  was  carried  out;  that  Mr.  Wid- 
ney  advanced  the  money,  and  Wood  was  to  return  one-half, 
and  it  was  so  charged.  See  questions  and  answers  63,  64,  65, 
351,  352,  364  to  375,  inclusive;  400,  461,  to  471  inclusive;  400, 
82,  83,  85,  86, 619,  620,  621.  It  did  not  confirm  him  as  to  tho 
manner  of  i)ayniont,  nor  the  identity  of  the  recipient,  hut 
merely  as  to  the  fact  of  payment,  and  Wood's  responsibility 
for  one-half. 

"  Fourth,  as  to  all  these  statements  and  conclusions  from 
which  were  that  Wood  was  his  accomplice.  See  questions 
and  answers  Nos.  15,  29,35  to  56,  inclusive;  32b  to  333,  in- 
clusive, and  503. 

"  Fifth,  as  to  the  fact  that  an  entry  on  the  book  had  been 
made  of  the  transaction;  that  is,  that  the  ^500  had  been  ac- 
counted for.  See  questions  and  answers  86  to  94,  inclusive, 
588,  590,  591;  that  the  entries  were  made  November  15th,  as 
8\\  ">rn  to  by  him  in  answer  to  question  588;  that  they  were 
madk.  under  his  instructions  to  Mr.  Cruzat,  his  book-keeper,  as 
sworn  to  in  answers  588,  590,  and  59  f.  See,  also,  Cruzat's 
testimoi^y,  Nos.  87i  to  93,  inclusive. 

•  "  Sixtii,  as  to  the  fact  that  he  was  manager  of  the  Pennsyl- 
vania Coal  Co.,  since  he  had  the  power  to  draw  funds  from 
their  business,  and  to  direct  the  book-keeper  what  entries  to 
make  in  relation  to  them,  and  under  no  obligation  to  reveal 
the  facts  and  details  of  the  transaction.  See  answers  2,  3,  5, 
87i  to  93,  inclusive,  146,  147,  149, 1.50.  688,  590,  591,  424.  See, 
also,  Cruzat's  testimony,  questions  and  answers  7  to  16,  inclu- 
sive, 38,  39,  42,  45,  46,x  47.  See,  also,  Judge  Walker's  state- 
ment (of  counsel  for  defendant)  in  Cruzat's  testimony  that  all 
entries  were  made  under  instructions  and  directions  of  Mr. 
Widney. 

"Seventh,  they  tended  to  confirm  his  sworn  statements  as  to 
concealment  of  the  transaction— concealing  tlio  details  from 


STATE  V.  CALLAHAN. 


108 


every  one,  even  his  book-keeper.  See  questions  and  answers 
407  to  430,  inclusive,  622  to  028,  inclusive.  See,  also,  Cruzat's 
testimony,  7  to  10,  inclusive. 

"  In  conclusion,  1  regarded  those  entries  in  the  nature  of 
stfttoinents — written  statements — made  out  of  court,  at  a  time 
unsuspicious,  in  due  course  of  business,  and  admissil«le  to  show 
that  they  involved  a  condition  of  things  conforming  to  the 
witness'  sworn  testimony  at  the  trial. 

[Signed]    "  James  C.  Moise,  Judge." 

With  regard  to  the  admissibility  of  the  check  and  the  stub 
as  constituting  part  of  the  res  yestm,  we  are  of  opinion  that 
the  ruling  of  the  trial  judge  was  undoubtedly  correct.  They 
were  contemporaneous  in  date  with  the  principal  transaction— 
that  is,  the  payment  of  the  money  to  the  defendant — consti- 
tute a  part  of  it,  and  illustrate  its  character.  Hence  they  were 
properly  admitted  in  evidence. 

Ijut  with  regard  to  the  admissibility  of  the  entries  in 
the  books  of  the  coal  comi)any,  and  the  parol  testimony  of 
Widney  and  Cruzat  in  respect  to  those  entries,  quite  a  difficult 
question  arises,  because  Widney  had  directed  tliose  entries  to 
be  made  by  Cruzat  in  the  absence  and  without  the  knowledge 
of  the  defendant  eight  days  after  the  transaction  was  closed. 

This  is  shown  by  the  statement  of  the  trial  judge  in  his 
reasons  for  admitting  the  testimony,  viz. :  "  J33fore  admitting 
the  entries  they  were  examined,  and  found  to  contain  no  re- 
cital which  had  even  the  semblance  of  a  tendency  to  identify 
or  connect  the  accused,  Callahan,  with  the  receipt  of  the 
money. 

"  They  did  tend  to  confirm  Widney's  statements  as  to  the 
following  facts,"  etc. 

It  is  therefore  evident  that  the  judge  did  not  consider  these 
entries  a  part  of  the  reage-ttm.  He  did  not  put  his  ruling  on 
that  ground,  for  he  distinctly  states  that  the  testimony  was 
admitted  "  for  the  purpose  of  confirming  the  witness '  [Wid- 
ney's] narrative  of  facts  as  fjir  as  possible,  in  all  its  parts,  in 
order  to  sustain  his  veracity,  which  had  been  assailed  in  the 
manner  utated  in  the  written  reasons  fi^eil  at  the  time  and  re- 
ferred to  ahom,  and  made  2yart  hereof  ^    (Our  italics.) 

He  finally  states  that  he  "  regarded  these  entries  in  the 
n..i,ure  of  statements — written  statements — made  out  of  court, 


m- 
mv 


■m  m. 


i 


104 


AMERICAN  CRIMINAL  REPORTS. 


at  a  time  unsuspicious,  in  the  duo  course  of  business,  and  ad- 
missible to  show  that  they  involve  a  condition  of  thins^s  con- 
forming to  the  witness'  sworn  testimony  at  the  trial." 

We  further  extract  from  the  brief  of  counsel  for  the  State 
"  the  reasons  of  court  for  admitting  books  in  evidence  attached 
to  bill  No.  6."    They  arc  as  follows,  viz.: 

"  REASONS  OF  COURT  FOR  ADMriTING  BOOKS  IN  EVIDENCE,  ATTACHED 

TO  BILL   NO.  6. 

"  On  August  17,  1894,  on  the  trial  of  this  case,  the  State 
souo-ht  to  introduce  in  evidence  certain  entries  made  upon  tlie 
books  of  witness  L.  S.  Widney,  for  the  purpose,  as  announced, 
of  corroborating  the  testimony  of  said  witness,  when  such  tes- 
timonv  had  not  yet  been  assailed.  I  asked  counsel  should 
not  such  evidence,  if  admissible,  be  propsrly  offered  in  re- 
buttal. The  suggestion  involved  in  this  question  did  not 
meet  with  acceptance  upon  the  part  of  counsel,  and  he  urged 
his  offer,  arguing  its  admissibility.  It  was  contended  that  the 
witness  was  an  accomplice  of  the  prisoners,  and  his  testimony 
should  be  corroborated.  It  was  ruled  inadmissible.  An  ac- 
complice being  a  competent  witness,  if  credit  be  given  his 
testimony  it  would  require  no  confirmation  from  other  evi- 
dence. The  rule  of  law  in  this  State  is,  a  jury  may  convict  on 
the  uncorroborated  testimony  of  an  accomplice.  iSlate  v.  Cook, 
20  La.  Ann.  145;  State  v.  Bit/onne,  23  La.  Ann.  78;  State  v. 
Prudhomme,  25  La.  Ann.  522;  State  v.  Croiole;/,  33  La.  Ann. 
782;  State  v.  Jiussell,  Id.  138;  State  v.  Mason,  38  La.  Ann.  47G; 
State  V.  H(  milton,  35  La.  Ann.  1043. 

"  In  Russell's  case,  33  La.  Ann.  13G,  our  Supreme  Court 
held  the  following  charge  to  the  jury  in  the  Prudhomme  cue, 
25  La.  Ann.  522,  to  be  correct.  '  The  jury  may  convict  on 
the  uncorroborated  testimony  of  an  accomplic3.  Tiioy  are 
the  judges  of  his  credibility,  and  the  rule  requiring  t'.ie  judge 
to  charge  the  jury  that  the  testimony  of  any  accomplice  needs 
confirmation  is  a  rule  of  practice,  rather  than  a  rule  of  law.' 
And  they  say  further :  '  The  rule  requiring  corroboration  is 
a  rule  not  of  law,  but  of  general  and  useful  practice,  the  appli- 
cation of  which  is  for  the  discretion  of  the  judge  by  whom  the 
case  is  tried,  and  in  its  application  much  depends  on  the  nature 
of  the  offense  and  the  witness'  complicity.' 

"  The  rule  as  to  the  character  of  corroborative  evidence  in 


STATE  V.  CALLAHAN. 


105 


the  case  of  accomplices  is  thus  laid  down  by  Eussell  on  Crimes 
(volume  3  [9th  Ed.],  p.  603): 

" '  There  is  a  great  difference  between  confirmations  as  to  the 
circumstances  of  the  felony  and  those  which  apply  to  the  in- 
dividual charged;  the  former  only  proves  that  the  accomplice 
was  present  at  the  offense;  the  latter  shows  that  the  prisoner 
was  connected  with  it.  This  distinction  ought  always  to  be 
attended  to.  "Wilkes  and  Edwards  were  charged  with  stealing 
a  lamb,  and  an  accomplice  proved  the  case  against  both  the 
prisoners,  and  stated  that  they  threw  the  skin  of  the  lamb  into 
a  whirley  hole,  the  situation  of  which  he  described,  and  a  con- 
stable proved  that  he  found  the  skin  in  the  whirley  hole.  A 
quantity  of  meat  was  found  of  u  kind  corresponding  with  that 
of  the  stolen  lamb  in  the  house  of  Edwards,  but  could  not  be 
positively  identified,  and  a  witness  proved  that  Wilkes  had 
come  to  him  to  borrow  a  pair  of  shears,  and  had  then  made  a 
statement  to  him  to  the  same  effect  as  the  evidence  of  the  ac- 
complice. Alderson,  B.,  said  in  summing  up :  "  The  con- 
firmation of  the  accomplice  as  to  the  commission  of  the  felony 
was  no  confirmation  at  all,  because  it  would  be  a  confirmation 
as  much  as  if  the  accusation  were  against  you  and  me,  as  it 
would  be  to  those  prisoners  who  are  now  upon  their  trial.  The 
confirmation  which  1  alwt._^  ^  require  juries  to  require  is  a  con- 
firmation of  some  fact  which  goes  to  Jix  the  guilt  upon,  the  par- 
ticular person  charged^'' '     (Italics  are  the  court's.) 

"  •  The  corroboration,'  suys  the  same  author  (page  602), 
'  must  not  only  connect  the  p.'isoner  and  the  accomplice  to- 
gether, but  must  be  such  as  to  show  that  the  prisoner  was  en- 
gaged in  the  transaction  which  forms  thesiibject-mutterof  the 
charge  under  investigation.'  And  after  giving  the  tacts  of  the 
case  cited  {Reg.  v.  Farler,  M.  S.  S.  C.  G.,  8  C.  «fe  P.  lOG  (34  E. 
C.  L.  R.)  quotes  Lord  Abinger,  as  follows : 

'"  Now,  in  my  opinion,  that  corroboration  ought  to  consist 
in  some  circumstance  that  affects  the  identity  of  the  pai'ty  ac- 
cused. A  man  who  has  been  guilty  of  a  crime  himself,  will 
always  be  able  to  relate  the  facts  of  the  case;  and  if  the  con- 
firmation be  only  of  the  truth  of  that  history,  without  identify- 
ing the  persons,  that  is  really  no  corroboration  at  all.'  See 
the  many  ''ases  cited  in  illustration  in  3  Kuss.  Crimes  (9th  Ed.), 
pp.  599-611,  inclusive. 

"Therefore,  if  such  evidence  is  not  confirmatory  in  its 


.*« 


%\ 


ku    r 


;..  1; 


!i 


fi 


106 


AMERICAN  CRLMINAL  REPORTS. 


nature  it  is  logically  irrelevant;  but  it  has  never  been  consid- 
ered sufficiently  disconnected  with  the  main  issue  to  warrant 
its  exclusion  on  that  ground. 

"  In  the  many  cases  cited,  the  evidence  went  to  the  jury  sub- 
ject to  the  charge  of  the  court  on  its  effect,  but  in  every  in- 
stance it  was  the  testimony  of  a  third  person  as  to  the  same 
fact  testified  to  by  the  accomplice,  and  not  a  prior  statement 
of  the  accomplice,  oral  or  written,  in  substantiation  of  his  own 
testimony,  and  thus  amenable  to  another  legal  objection  posi- 
tively justifying  its  exclusion. 

"  Viewing  the  case  at  bar  in  the  light  of  these  principles, 
proof  of  the  fact  that  an  entry  had  been  made  in  the  books 
of  Mr.  Widney  as  to  the  withdrawal  of  five  hundred  dollars 
from  his  business  on  the  date  stated  could  not  be  objection- 
able, but  to  admit  in  evidence  the  entries  themselves,  so  that 
their  recitals  would  be  proof  against  the  prisoner,  and  binding 
upon  and  identifying  him  as  the  party  who  received  the  money, 
when  it  was  not  shown  that  he  was  present  when  the  entries 
were  made,  or  when  Mr.  Widney  directed  his  book-keeper  to 
make  them,  or  that  he  was  aware  that  they  were  made, 
would  be  contrar}'  to  the  elementary  principles  of  evidence. 

"  It  would  be  competent  to  prove  the  withdrawal  of  funds 
from  a  business,  or  the  withdrawal  or  delivery  of  goods  from 
a  stock  of  merchandise,  or  prove  any  other  such  facts  in  the  due 
course  of  business,  by  such  entries,  uniler  certain  conditions, 
but  they  are  not  admissible  to  fix  the  identity  of  a  i)ei'son 
under  the  circumstances  of  this  case  as  to  his  complicity  in  the 
crime  charged, 

"  There  must  have  been  some  evidence,  as  a  foundation,  to 
connect  Callahan  with  the  particular  entries  sought  to  be  in- 
troduced in  evidence.  This  position  appears  to  me  to  have 
greater  force  when  the  evidence  was  offered,  not  to  prove  an  in- 
dej^ndeiit,  substantive,  relevant  fact  by  a  third  person  in  coi- 
roboration  of  the  accomplice's  testimony,  but  to  corroborate 
him  by  his  prior  statements  in  his  books  when  his  testimony 
has  not  been  assailed. 

"  Since  this  ruling  the  witness  has  been  cross-examined  and 
turned  over  to  the  State  for  redirect  examination.  The  pros- 
ecution again  offers  the  books  in  evidence  for  the  purpose  of 
substantiating  the  witness'  testimony,  it  having  been  ])ositively 
attacked.    It  is  claimed  the  situation  has  now  niateriallv 


STATE  V.  CALLAHAN. 


107 


changed,  since  a  basis  has  been  laid  for  the  introduction  of  this 
evidence  by  tlie  assault  upon  the  witness'  veracity. 

"  On  the  cross-examination  there  was  a  very  strong  effort 
made  to  weaken  the  testimony  of  the  witness  by  the  most 
searching  interrogatories.  The  examiner  announced  in  open 
court,  in  the  presence  of  the  jury,  that  the  defense  intended  to 
prove  that  Callahan  was  not  present  at  Widney's  office,  as 
testified  to  by  the  latter;  in  other  words,  to  prove  an  alibi. 
This  announcement  questions  the  truth  of  every  fact  sworn  to 
by  the  witness  in  relation  to  Callahan's  visit  to  his  office.  He 
also  laid  the  foundation  for  impeaching  the  testimony  of  the 
witness  b}'  propounding  the  necessary  questions  and  summon- 
ing a  witness  for  the  purpose  of  contradiction. 

"  He  is,  therefore,  to  be  impeached  and  contradicted  as  to 
material  facts  in  the  case,  and  particularly  as  to  what  had 
taken  ])lace  at  his  office  at  the  time  he  paid  Callahan,  and 
under  the  circumstances  stated.  If  this  testimony  in  support 
of  the  witness  Widney  were  not  admitted,  the  State  would  bo 
left  in  a  crippled  condition,  without  an  opportunity  of  repairing 
it,  should  the  case  be  submitted.  This  was  the  ground  lor  the 
ruling  in  the  case  of  iState  v.  Fnuje^  44  La.  Ann.  165. 

"  An  attack  having  been  made  upon  the  veracity  of  the  pros- 
ecuting witness,  it  is  comi)etent  for  the  State  to  sustain  his 
statements  by  every  corroborating  fact  coincident  with  the 
history  of  the  case  as  testified  to  by  him.  It  makes  no  dif- 
ference whether  or  not  such  confirmation  have  a  direct  or  in- 
direct tendency  to  implicate  the  prisoner  in  the  commission  of 
the  crime.  It  is  relevant,  in  ortler  to  sustain  his  truth,  which 
has  been  called  in  question;  to  corroborate  his  narrative  of  the 
facts,  which  it  has  been  sought  to  break  down.  I  think  this 
case,  in  ])rinciple,  strictly  parallel  witii  that  of  Com.  v.  Wilson, 
1  Gray,  138;  <State  v.  Bof/d,  38  La.  Ann.  374;  1  Greenl.  Ev. 
§  4t59;  Turnpike  Co.  v.  Ileil,  118  Ind.  130. 

"  In  a  prosecution  for  rape,  if  the  prosecutrix,  having  been 
admitted  to  testify  that  she  made  a  complaint  immediately 
after  the  fact,  is  impeached  as  to  the  fact  of  this  complaint, 
she  may  be  supported  by  proving  she  has,  out  of  court,  nar- 
rated tlie  facts  as  testified  to  by  her  at  the  trial.  Thompson 
V.  Sfate,  38  Ind.  39. 

"  I  think  it  has  been  distinctly  developed  by  the  defense  that 
fraud  is  to  be  attributed  to  Widney  and  that  he  never  paid  tl.3 


:-^ 


&>} 


'VV 


I! 


m 


4 


108 


AMERICAN  CRIMINAL  REPORTS. 


i\: 


? 


;;   I.I 


sum  charged  to  the  prisoner  at  the  bar.  If  fraud  or  improper 
conduct  be  imputed  to  the  witness,  the  supporting  evidence 
will  be  admitted.  1  Greenl.  on  Ev.  (15th  Ed.),  pp.  G21,  622, 
note  c,  citing  Annesley  v.  Anylesea,  17  How.  State  Tr.  1348. 
"  For  these  reasons  I  rule  the  evidence  admissible." 

From  the  foregoing  we  have  it  affirmed  by  the  trial  judge 
that  these  entries  were  not  olfered  for  the  purpose  of  corrobo- 
rating the  testimony  of  an  accomplice  as  to  those  facts  which 
fix  the  guilt  of  an  accused  by  identifying  and  connecting  him 
with  the  commission  of  the  crime.  That  at  a  prior  stage  of  the 
trial,  and  before  a  basis  had  been  laid  for  Widney's  contradic- 
tion, these  entries  had  been  offered  on  the  part  of  the  State, 
and  rejected  on  the  ground  that  to  admit  them,  as  binding  on 
the  defendant,  and  identifying  him  as  the  party  who  received 
the  money  when  it  was  not  shown  that  he  was  present  when 
the  entries  were  made,  "  would  be  contrary  to  the  elementary 
principles  of  evidence."  That  these  entries  were  admitted  over 
objection,  after  the  basis  had  been  laid  for  Widney's  impeach- 
ment for  the  purpose  of  corroborating  his  narrative  of  facts 
and  to  sustain  his  veracity.  That  since  the  credibility  of  Wid- 
ney  has  been  attacked  the  situation  has  materially  changed, 
and  the  entries  have  become  competent  evidence,  though  in- 
admissible before  it  was  attacked;  and  "  that  it  makes  no 
difference  whether  or  not  such  confirmation  has  a  direct  or 
indirect  tendency  to  implicate  the  prisoner  in  the  commission 
of  the  crime." 

That  this  affirmation  of  the  trial  judge  be  fully  enforced,  we 
make  the  following  extracts  from  the  brief  of  counsel  for  the 
State : 

"The  error  into  which  the  astute  counsel  representing  this 
defendant  have  fallen,  grows  out  of  the  assumption  that  the 
only  corroboration  of  a  witness  who  happens  to  be  an  accom- 
plice which  the  law  will  permit  is  a  corroboration  as  to  those 
parts  of  his  statement  exclusively,  which  tend  to  connect  the 
defendant  with  the  crime  charged. 

"  Their  constant  announcement  of  the  rule  was,  that  unless 
the  testimony  offered  in  corroboration  had  the  tendency  to 
prove  some  fact  connecting  the  defendant  with  the  crime 
charged,  or  to  show  any  participation  of  the  defendant  with 
the  accomplice  at  any  stage  of  the  transaction,  it  should  have 
been  scrupulously  excluded. 


STATE  V.  CALLAHAN. 


109 


"  As  written  in  the  record,  the  history  of  the  case  establishes 
that  the  very  character  of  testimony  wliich  wa3  here  objected 
to  had  previously  been  oifered  on  behalf  of  the  prosecution 
for  the  avowed  purpose  of  corroborating  tlie  accomplice,  Wid- 
ney,  and  that  when  thus  offered  it  was  unhesitatingly  rejected 
by  the  court  as  inadmissible  for  that  pur[)ose,  because  it  did 
not  amount  to  a  confirmation  of  some  fact  which  tended  to  fix 
upon  the  defendant  the  commission  of  the  crime  charged  in 
the  indictment.     *    *    * 

"  It  is  therefore  obvious  that  the  District  Judge  was  in  full 
accord  with  the  defendant's  counsel  in  holding  that  the  confir- 
mation of  an  accomplice  which  is  required  must  not  only  con- 
nect the  prisoner  and  the  accomplice  together,  but  must  be 
such  as  to  show  that  the  prisoner  was  engaged  in  the  trans- 
action which  forms  the  subject-matter  of  the  charge  under 
investigation. 

"  The  evidence,  however,  was  offered  and  admitted  at  the  trial 
for  an  entirely  different  and  distinct  purpose.  It  was  not  in- 
troduced with  a  view  to  corroborate  the  testimony  of  an  ac- 
complice as  to  some  material  fact  in  order  that  the  jury  miglit 
be  justified  in  convicting  upon  his  testimony,  but  was  offered 
for  the  purpose  of  supporting  those  of  his  statements  which 
had  been  impeached  by  the  opposing  counsel,  who  had  imputed 
to  him  imjiroper  motives,  and  a  recent  fabrication  of  his  ac- 
count of  the  transaction  by  showing  prior  similar  statements 
made  by  him  before  such  bias  or  motive  could  have  influenced 
his  declarations." 

Counsel  ""or  the  State  then  formulate  the  following  proposi- 
tions, and  state  their  authorities  thus: 

"  Besides  these  cases,  there  are  also  others  where  the  sup- 
porting testimony  is  permitted  solely  because  of  the  nature  of 
the  peculiar  circumstances  which  exist.  In  this  latter  class  of 
cases  the  impeached  witness  is  not  sustained  by  general  evi- 
dence of  his  good  character  for  truth  and  veracity,  but  by 
proof  that  at  a  time  not  suspicious  he  made  a  prior  similar 
statement  to  the  one,  the  truthfulness  of  which  has  been  as- 
sailed. Therefore  it  is  now  laid  down  as  a  maxim  of  the  law 
that  where  evidence  has  been  offered  tending  to  show  bias, 
improper  motive,  or  recent  fabrication  on  the  part  of  a  wit- 
ness calculated  to  account  for  the  testimony  given,  then  prior 
similar  statements,  made  before  such  bias  or  motive  could  have 


if*iM 


V  m 


^« 


w-  Mil 


iii»-"^i 


110 


AMERICA?.  CRIMINAL  REPORTS. 


I 


actuated  the  witness,  may  be  given  on  redirect  examination 
or  in  rebuttal.  Best's  Prin.  Ev.  p.  C33,  note  under  subhead 
'Corroborating  Statements;'  People  v.  Doydl,  48  Cal.  S5; 
Thompson  v.  State,  38  Ind.  39;  liohb  v.  ITaeMey,  23  Wend.  50; 
Hayes  v.  Cheatham,  6  Lea.  ( Tenn. )  1,  10;  Stclph  v.  Blair,  68 
111.  241.  See  Henderson  v.  Jones,  10  Serg.  &  R.  322;  State  v. 
George,  8  Ired.  (N.  C.)  324;  Dossett  v.  Miller,  3   Sneed,  72." 

From  the  foregoing  we  have  the  proposition  that  the  entries 
in  the  books,  made  under  the  direction  of  Widney,  an  accom- 
plice, were  inadmissible  for  the  purpose  of  corroborating  his 
statements  of  fact  fixing  the  guilt  of  the  defendant;  but  that 
when  a  basis  had  been  laid  by  defendant  for  his  impeachment, 
they  became  admissible,  as  a  previous  consistent  statement  for 
the  purpose  of  sustaining  his  veracity.  Or,  put  in  other  words, 
it  is  that  laying  the  basis  for  the  impeachment  of  an  accom- 
plice constitutes  him  a  witness,  entitling  him  to  all  the  priv- 
ileges and  immunities  of  a  witness;  that  is  to  say,  that  an 
accomplice  being,  in  contemplation  of  law,  a  person  unworthy 
of  credit,  and  whose  testimony  requires  some  confirmation  to 
entitle  same  to  full  faith  and  credit,  is  relieved  from  this  disa- 
bility the  moment  a  further  direct  attack  upon  his  credibility 
is  made;  and  eo  instanti  he  becomes  elevated  to  the  plane  of  a 
trustworthy  and  credible  witness. 

It  would  seem  that  a  legitimate  deduction  from  that  state- 
ment would  lead  to  the  opposite  view.  But,  if  this  theory  be 
correct,  the  distinction  that  is  taken  between  witness  and  ac- 
complice would  appear  to  be  more  seeming  than  real. 

That  "Widney  is  an  accomplice  of  the  defendant  appears 
on  the  face  of  the  indictment,  and  on  the  face  of  the  statute 
nnttev  which  the  indictment  was  found.  Sec.  1,  Act  78  of  1890. 
' ''j-^t  section  of  the  statute  is  couched  in  the  same  phraseolofj-v 
Z".  ti'e  173d  article  of  the  constitution. 

ae  trial  judge  recognized  and  treated  him  as  an  accom- 
plice in  his  rulings  in  this  case. 

Vide  opinion  and  rulings  above  quoted. 

That  we  be  under  no  misapprehension  with  regard  to  the 
legal  status  of  an  accomplice  who  is  placed  upon  the  witness 
stand  to  testify  in  behalf  of  the  State,  let  us  look  into  the  au- 
thorities on  the  subject,  and  see  how  they  stand. 

In  Com.  V.  Bosworth,  22  Pick.  397,  the  Massachusetts  court 
stated  the  rule  thus : 


STATE  V.  CALLAHAN. 


Ill 


"But  the  source  of  this  evidence  is  so  corrupt  that  it  is 
always  looked  upon  with  suspicion  and  jealousy,  and  is  deemed 
unsafe  to  rely  upon  without  confirmation." 

And  in  treating  of  what  confirmation  is  requisite,  the  court 
said : 

"  "We  think  the  rule  is  that  the  corroborative  evidence  must 
relate  to  some  portion  of  the  testimony  which  is  material 
to  the  issue.  To  prove  that  an  accomplice  had  told  the  truth 
in  relation  to  irrelevant  and  immaterial  matters,  which  were 
known  to  everybody,  would  have  no  tendency  to  confirm  his 
testimony  involving  the  guilt  of  the  party  on  trial." 

That  decision  has  been  since  adhered  to  and  affirmed  in  that 
court  in  the  following  cases,  viz.:  Com.  v.  Larrahee,  90  Mass. 
413;  Com.,  v.  Elliot,  110  Mass.  10-1;  Com,,  v. Snow,\\\  Mass.  411; ' 
Com.  V.  Scott,  123  Mass.  222;  Com.  v.  Holmes,  127  Mass.  424. 

And  the  same  rule  has  been  adhered  to  and  followed  in 
the  courts  of  other  States.  Vide  State  v.  Wolcott,  21  Conn. 
272. 

The  Georgia  court  states  the  proposition  thus : 

"  There  is  absolutely  no  evidence  corroborating  the  accom- 
plice, Thurman,  in  the  sense  of  the  law.  "VVe  decided  in  the 
case  of  Chil(ler»  v.  State,  52  Ga.  100,  that  the  corroborating 
circumstances  must  be  such  as  connect  the  prisoner  in  some 
way  with  the  crime.     *     *     * 

"That  the  conviction  in  the  case  at  bar  is  based  solely  on  the 
testimony  of  Thurman.  There  are  circumstances  going  to 
show  he  is  guilty,  other  than  what  he  states,  but  absolutely 
none  that  the  prisoners  are.     *     *     * 

"That  (the  accom])lice)  told  the  same  tale  when  arrested  is 
not  only  no  corroboration  by  any  matter  connecting  the  pris. 
oners  with  the  crime,  but  it  is  illegal  testimony  anyway. 

"  It  is  strange  to  bolster  up  a  witness  by  proof  that  he  has  told 
the  same  story  before.  "We  know  of  no  authority  for  such  a 
practice."     Middleton  v.  State,  52  Ga.  527. 

The  Pennsylvania  court  states  the  rule  thus: 

"  It  is  almost  the  universal  opinion  that  the  testimony  of  an 
accomplice  should  be  corroborated  as  to  the  person  of  the 
])risoner  against  whom  he  speaks.  Some  fact  should  be  proved 
by  testimony  independent  of  the  accomplice,  which,  taken  by 
itself,  leads  to  the  inference,  not  only  that  a  crime  has  been 
committed,  but  that  the  prisoner  was  implicated  in  it.    To 


n 


ji 


112 


AMERICAN  CRIMINAL  REPORTS. 


prove  tliat  the  accomplice  had  told  the  truth  in  reference  to 
irrelevant  and  immaterial  matters  *  *  *  would  have  no 
tendency  to  confirm  his  testimony  involving  the  guilt  of  the 
party  on  trial."     Watson  v.  Oom.,  95  Pa.  St.  424. 

The  California  court  pronounced  the  rule  thus : 

"  The  acts  of  an  accomplice  are  not  evidence  against  the 
accused  unless  they  constitute  a  part  of  the  res  gestm,  and  occur 
during  the  pendency  of  the  criminal  enterprise,  and  are  in 
furtherance  of  its  objects."  People  v.  Moore,  45  Cal.  19;  People 
V.  Stanley,  47  Cal.  113. 

The  Missouri  court  quotes  with  approval  the  rule  as  an- 
nounced in  Pc'(/.  V.  Farler,  8  Car.  &  P.  106,  to  wit: 

"  It  is  a  practice  which  deserves  all  the  reverence  of  law,  that 
judges  have  uniformly  told  juries  that  they  ought  not  to  i)ay 
any  respect  to  the  testimony  of  an  accomplice  unless  the  ac- 
complice is  corroborated  in  some  material  circumstance. 

"Now,  in  my  opinion,  the  corroboration  ouglit  to  consist  of 
some  circumstance  that  affects  the  identity  of  the  accused. 
A  man  who  has  been  guilty  of  a  crime  himself,  will  always  bo 
able  to  relate  the  facts  of  the  case;  and  if  the  confirmation  be 
only  of  the  truth  of  that  history,  without  identifying  the  per- 
sons, that  is  really  no  corroboration  at  all."  /State  v.  C7iiot/k, 
92  Mo.  395. 

The  foregoing  extracts  have  been  selected  as  pertinent  to  the 
question  at  issue,  and  as  illustrative  of  the  consensus  of  the  best 
judicial  opinion  on  the  subject;  and  we  also  refer  to  the  fol- 
lowing decisions,  without  quoting  from  them,  as  being  equally 
decisive  and  authoritative:  Peojde  v.  Elliott,  h  N.  Y.  2045 
Boyce  v.  People,  55  N.  Y.  645;  Armstrong  v.  People,  70  N.  Y. 
3S;  People  v.  Plath,  100  N.  Y.  693;  Coleman  v.  State,  44  Tex. 
109;  State  v.  Thornton,  2t)  Iowa,  SO;  Lamphln  v.  State,  68  Ala. 
56;  Poss  V.  State,  74  Ala.  532. 

Nor  is  this  so  only  of  the  adjudications  of  the  other  States 
of  the  Union,  but  like  principles  are  announced  by  all  text 
writers,  of  which  we  cite  the  following,  viz.:  3  Rice,  Cr.  Ev., 
§  325;  1  Greenl.  Ev.  ri4  Ed.),  §  381,  and  note;  1  Phil.  Ev.,  pp. 
30, 38, 112;  2  Russ.  on  Crimes,  pp.  396, 956,  967,  968;  2  Stark ie, 
Ev.,pp.  11,12;  1  Rose.  Cr.  Ev.,  pp.  120,  133,  155,  160;  1  Hale, 
P.  C,  p.  305;  Whart.  Cr.  Prac.  (9th  Ed.),  §§  442,  481,  490. 

Mr.  Bishop  puts  the  proposition  thus  tersely :    "  Nor  does 


STATE  V.  CALLAHAN. 


113 


the  testimony  of  one  acoomplico  confirm  another."     1  Bish. 
Cr.  rroc,  §  1170. 

Joy,  Lord  Chitf  Baron  of  the  exchequer  of  Iroland,  says : 
"Besides,  those,  circumstances  were  deposed  to  by  the  accom- 
plices themselves,  and  it  is  the  first  time  I  ever  heard  that  an 
accomplice  can  corroborate  himself  by  the  circumstances  which 
he  swears  to."     Joy's  Evidence,  AccomplicQ,s,  p.  3.5. 

Kecognizinff  these  established  principles,  we  held  in  a  recent 
case  that  all  the  decisions  and  authors  concur  in  the  opinion 
that  the  testimony  of  an  accomplice  can  not  be  confirmed,  ex- 
cept "  by  eviilenco  from  a  purer  source."  /State  v.  Mason,  38 
Ann.  470. 

That  decision  is  in  strict  keeping  with  prior  and  subsequent 
opinions  of  this  court.  State  v.  Baiiks,  40  Ann.  736;  State  v. 
JIamilton,  35  Ann.  1043;  State  v.  Jiasaell,  33  Ann.  136;  State 
V.  Prudhomme,  25  Ann.  532;  State  v.  Jiaijonne,  23  Ann.  7ti; 
State  V.  Cook,  20  Ann.  145. 

The  trial  judge  recognized  this  rule  of  jurisprudence  when 
he  rejected  and  disallowed  in  evidence  the  entries  in  the  books 
of  the  coal  company  on  the  ground  that  to  admit  them  as 
binding  on  the  defendant,  and  identifying  him  as  the  part}' 
who  received  the  money,  when  it  was  not  shown  that  he  was 
present  when  the  entries  were  made,  "  would  be  contrary  to 
the  elementary  principles  of  evidence."  But  when  a  basis  had 
been  laid  for  a  specific  impeachment  of  Widney's  general  char- 
acter for  truthfulness,  the  judge  was  of  opinion,  and  so  ruled, 
that  the  situation  was,  on  that  account,  materially  changed, 
and  the  rejected  entries  had  become  admissible  evidence, 
"whether  or  not  such  confirmation  has  a  direct  or  indirect 
tendency  to  implicate  the  prisoner  in  the  commission  of  the 
crime." 

Entertaining  this  view,  he  permitted  the  entries  introduced 
on  behalf  of  the  State  for  the  purpose  of  corroborating  Wid- 
ney's  previous  narration  of  facts  and  of  sustaining  his  ve- 
racity. 

If  this  ruling  bo  correct,  and  must  be  sustained  by  this  court, 
it  is  because  an  accomplice  loses  his  character  as  such,  and  be- 
comes a  witness,  as  soon  as  a  basis  is  laid  for  his  impeachment. 

To  thus  hold  and  decide  would  be  equivalent  to  saying  that  a 
person  who  is  unworthy  of  credit,  and  whose  testimony  needs 
corroboration  to  entitle  it  to  full  faith  and  credit,  is  relieved 
8 


m. 


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i 


I 

u 


i 


81     l« 


114 


AMERICAN  CRIMINAL  REPORTS. 


from  that  disability  as  soon  as  further  formal  assault  is  made 
upon  his  veracity,  entitling  him  to  the  privileges  and  immuni- 
ties of  a  credible  and  trustworthy  witness. 

We  have  been  furnished  with  neither  authority  nor  precedent 
for  that  proposition;  nor  have  we  been  able,  after  most  indus- 
trious examination  of  adjudicated  cases  and  text-books,  to  find 
any  precept  sustaining  it. 

The  only  cases  cited  by  the  trial  judge  as  sustaining  that 
view  are  /State  v.  Boyd,  38  La.  Ann.  374,  and  Corn.  v.  Wilma,  1 
Gray,  133. 

In  our  opinion,  neither  of  those  cases  have  any  application 
to  the  question  under  consideration,  as  they  simply  state  tlic 
rule  applicable  to  ordinary  witnesses,  and  make  no  reference 
to  accomplices. 

In  the  case  of  State  v.  Banks,  40  La.  Ann.  736,  there  was  no 
question  of  the  impeachment  of  either  witness  or  accomplice. 
The  accomplice  had  testified  that  the  defendant  had  told  him 
"  where  he  had  procured  the  ax  with  which  the  homicide  had 
been  committed  ; "  and  another  witness  testified,  in  corrobo- 
ration of  that  statement,  that  the  accomplice  "  bad*  shown  him 
the  place  v/here  the  homicide  had  been  committed,  and  the 
spot  where  the  body  of  the  victim  had  been  found."  The  court 
properly  held  this  testimony  admissible  for  the  purpose  of 
corroborating  the  testimony  of  the  accomplice;  but  it  was  ad- 
missible for  the  reason  that  it  tende'd  directly  to  establish  the 
guilt  of  the  defendant,  and  because  it  was  the  statement  of  a 
third  person,  disconnected  with  the  Case. 

Even  with  reference  to  the  admissibility  of  circumstantial 
evidence  to  sustain  the  veracity  of  an  ordinary  witness,  on  the 
part  of  the  State,  the  most  recent  opinion  of  this  court  is  ad- 
verse to  the  theory  entertained  by  the  trial  judge,  for  in  State 
V.  Guillory,  4.5  La.  Ann.  31,  the  following  occurs : 

"  The  trial  judge  assigns  as  his  reasons  for  permitting  the 
testimony  to  be  introduced,  first,  that  it  was  in  corroboration 
of  the  testimony  of  one  of  the  witnesses  for  the  State,  who  had 
testified  that  he  saw  Ambrose  Guillory  band  a  pistol  to  the 
accused  when  the  quarrel  began;  second,  that  the  testimon}'^  of 
said  witness  was  the  subject  of  an  attempt  by  the  defense,  to 
impeach  and  contradict  him  on  that  point. 

"  These  reasons,"  say  the  court,  "  are  in  our  opinion  insuffi- 
cient to  justify  the  radical  departure  from  elementary  princi- 


STATE  V.  CALLAHAN. 


115 


plos,  in  permitting  hearsay  testimony  as  a  part  of  the  aflfirmativo 
evidence  on  the  part  of  the  prosecution.  The  judge's  ruling 
was  clearly  erroneous,  and  the  accused  is  entitled  to  relief." 

In  our  opinion  it  is  a  contradiction  in  terms  to  treat  of  the 
impeachment  of  an  accomplice,  in  view  of  the  fact  that  being 
an  accomplice  attaches  to  his  testimony  such  a  degree  of  sus- 
picion and  jealousy  that  it  is  deemed  unsafe  for  a  jury  to 
rely  upon  it  without  confirmation.  The  very  object  of  im- 
peachment is  to  discredit  a  witness;  and  if  the  statement  of 
a  witness  is  already  discredited,  by  reason  of  his  being  an 
accomplice,  it  would  seem  to  be  the  work  of  supererogation 
to  administer  additional  testimony  looking  to  his  impeach- 
ment. This  princijjle  w.as  aflirmed  in  People  v.  Vane,  12 
Wend.  78,  in  which  the  New  York  court  say  that  "  the  wit- 
ness stands  impeached  by  the  direct  testimony  given  by  himself, 
as  in  the  present  case.  The  witness  shows  on  his  direct  ex- 
amination that  he  was  an  accomplice;  his  testimony  is  there- 
fore suspicious.  It  comes  from  a  tainted  source,  and  may  well 
bo  doubted.  In  such  case,  it  seems  to  me,  the  principle  applies 
that  a  witness  who  has  been  impeached  may  be  supported." 

And  ^[r.  Thompson,  in  his  treatise  on  Trials,  in  announcing 
the  same  princii)lo,  says:  '*  It  has  been  reasoned  that  when  the 
witness  is  an  accomplice,  this  fact  alone  is  an  attack  upon  his 
credibility,"  etc.     1  Thomp.  on  Trials,  p.  460,  §  549. 

To  the  same  effect  is  Staie  v.  TwitUj,  2  Hawks  (N.  C),  449, 
and  other  cases  in  that  court.  And,  inasmuch  as  testimony 
corroborative  of  the  testimony  of  an  accomplice  must  tend  to 
establish  the  guilt  of  the  accused,  it  would  seem  to  be  incom- 
patible with  both  the  reason  and  spirit  of  the  rule  to  permit 
the  introduction  of  any  other  character  or  species  of  testimony 
to  sustain  his  general  character  for  truthfulness  because  of  an 
effort  to  further  impeach  his  credibility'. 

The  whole  question  seems  to  be  completely  covered  by  the 
opinion  in  the  Massachusetts  court,  iu  Com.  v.  Bosioorth,  22 
Pick.  37. 

In  that  case  the  testimony  of  an  accomplice  was  the  sole 
reliance  of  the  prosecution.  The  district  attorney  sought  to 
corroborate  his  testimony  by  that  of  other  witnesses,  and  this 
was  permitted  over  objection  of  defendant's  counsel. 

"  For  the  purpose  of  impeaching  the  testimony  of  the  accom- 
plice," says  the  report,  "  the  defendant  introduced  a  letter  from 


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110 


AMERICAN  CRIMINAL  REPORTS. 


him  (tho  accomplico)  to  tho  defendant,  in  Avliich  he  admitted 
timt  liis  testimony  in  relation  to  this  case,  on  a  former  occasion, 
was  false.    *    *    * 

"  Tho  District  Attorney,  in  order  to  corroborate  tho  testimony 
of  the  accomplico,  for  tho  purpose  of  supporting  his  general 
credit,  then  called  tho  sheriff  and  jailer  to  prove  that  the  sit- 
uation of  tho  rooms  and  tho  arrangement  of  tho  prisoners 
therein  mrresiwnd  with  tho  account  given  by  the  accomplice. 
To  tho  admission  of  this  evidence  tho  defendant  objected,  but 
the  court  overruled  tho  objection,  and  admitted  tho  evi- 
dence." 

So  that  it  is  apparent  that  that  case  presents  the  identical 
question  that  confronts  us  in  the  instant  case. 

Tho  court,  first  reciting  tho  rule  that  is  announced  supra,  to 
wit,  "that  the  corroborative  evidence  must  relate  to  some  por- 
tion of  the  testimony  which  is  material  to  the  issue,"  held  that 
it  was  not  competent "  to  prove  that  an  accomplico  had  told  tho 
truth  in  relation  to  irrelevant  and  immaterial  matters,"  etc. 
And  with  regard  to  tho  attempted  impeachment  and  the  effort 
of  the  State  to  sustain  his  veracity,  the  court  say  further: 

"AVe  can  notpercei\e  how  the  circumstance  that  tho  wit- 
ness told  the  truth  about  these  public  and  common  objects, 
concerning  which  he  knew  that  proof  was  at  hand,  lias  any 
tendency  to  confirm  the  material  parts  of  his  testimony  in- 
volving the  guilt  of  the  defendant." 

That  opinion  is  perfectly  conclusive  and  irresistible  to  the 
effect  that  tho  testimony  of  an  accomplice,  whose  veracity  has 
been  specially  impeached,  can  not  be  sustained  by  any  species 
of  testimony  that  has  no  tendency  to  confirm  the  material  parts 
of  his  evidence  involving  tho  guilt  of  tho  defendant. 

Nearly  fifty  years  after  that  opinion  was  announced  it  was 
again  examined  and  affirmed  by  the  same  court  in  Com.  v. 
Holmes,  127  Mass.  424,  Mr.  Justice  Gray  being  tho  organ  of 
tho  court.  The  court  stylo  the  Bosworth  case  as  "  the  leading 
case  in  this  court  on  the  subject;"  and  making  a  lengthy  quota- 
tion therefrom,  they  affirm  it  on  both  propositions.  Since  that 
time  the  doctrine  of  the  Bosworth  case  has  stood  unquestioned, 
and  has  been  cited  as  authoritative  by  all  subsequent  text- 
writers. 

In  our  opinion  the  principle  on  w^hich  the  doctrine  is  founded 
is  correct  and  fundamental,  and,  accepting  same  as  correct,  our 


STATE  V.  CALLAHAN. 


117 


conclusion  is  that  the  learned  judge  of  the  trial  court  im- 
properly permitted  the  introduction  in  evidence  of  the  entries 
in  the  books  of  the  Pennsylvania  Coal  Com])any  over  the  de- 
fendant's objection,  and  that  thus  admitting  same  was  revers- 
ible error. 

Having  reached  this  conclusion,  it  becomes  our  duty  to  dis- 
pose of  the  defendant's  motion  in  arrest  of  judgment,  which, 
in  substance,  presents  the  same  question  as  that  which  was 
made  the  subject  of  discussion  by  counsel  for  the  defendant, 
antl  ligures  in  one  of  defendant's  bills  of  exceptions — the  bill 
of  exceptions  which  covers  the  ruling  of  the  court  on  this 
(]U(!stijn  being  No.  19. 

The  motion  in  arrest  of  judgment  is  couched  in  these  words: 

"  Sixth.  Uecause  the  indictment  fails  to  charge  that  the  de- 
fen  lant  was  an  olficcr  or  member  of  the  General  Assembly  at 
the  time  it  is  charged  he  received  said  sum  of  live  hundred 
dollars." 

As  stating  the  construction  of  the  statute  most  favorable  to 
the  defendant,  we  have  selected  and  appended  thereto,  the  par- 
aphrase of  section  1  of  Act  No.  78  of  1890,  which  is  drawn  in 
(juestion  by  tlie  motion  in  arrest,  Avhich  is  as  follows,  viz.: 

"Any  person  who  shall  directly  or  indirectly  offer  or  give 
any  sum  of  money,  bribe,  present  or  reward  *  *  *  to  any 
otticer.  State,  parochial  or  municipal  *  *  *  or  to  any 
member  or  ofHcer  of  the  General  Assembly  *  *  *  with 
intent  to  induce  such  olHcer  or  member  of  the  General  Assembly 

*  *  *  to  perform  any  duty  of  him  required  with  partiality 
or  favor    *    *     *    the   person  giving  or   offering  to  give 

*  *  *  and  the  officer  or  member  of  the  General  Assembly 
so  receiving    *     *    *    any  money,  bribe,  present  or  reward 

*  *  *  ^yjtii  the  intent,  or  for  the  purpose  or  consideration 
aforesaid,  shall  be  guilty  of  bribery." 

It  is  quite  true  that  the  present  indictment  is  founded  upon 
the  latter  denunciation  of  the  statute,  namely,  "the  officer  or 
member  of  the  General  Assembly  so  receiving  *  *  *  any 
mone}^"  etc.,  yet  it  is  distinctly  and  immediately  connected 
with  the  former  denunciation  of  the  same  section  of  the 
statute. 

"  The  words  '  so  receiving '  evidently  relate  back  to  the 
words  of  the  section  first  quoted,  with  regard  to  the  person 
who  '  shall  give  any  sum  of  money,  bribe,  present,  or  reward," 


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118 


AMERICAN  CRIMINAL  REPORTS. 


etc.;  and,  examining  the  words  that  intervene,  we  find  the 
enumeration  of  these  two  denunciations  to  be  '  any  otficer, 
State,  parochial  or  municipal,  *  *  *  or  to  any  member  or 
otiicer  of  the  General  Assembly.'  " 

We  are  of  opinion  that  the  words  "  officer  or  member  of  the 
General  Assembly  "  must  be  taken  to  refer  to  all  persons  enu- 
merated in  the  foregoing  portion  of  the  act — that  is  to  say,  the 
State,  parish,  and  municipal  o^cer,  or  member  of  the  General 
Assembly;  and  this  view  is  enforced  by  tlie  fact  that  both  de- 
nunciations are  contained  in  one  single  sentence. 

The  motion  in  arrest  of  judgment  is  not  good. 

It  is  therefore  ordered  and  decreed  that  the  verdict  of  the 
jury  and  the  judgment  and  sentence  thereon  based,  be  an- 
nulled and  reversed;  and  it  is  further  ordered  and  decreed  that 
the  cause  be  remanded  to  the  lower  court  for  a  new  trial  ac- 
cording to  law  and  the  views  herein  expressed. 

McEneuy,  J.  The  entries  made  in  the  books  of  the  Pennsyl- 
vania Coal  Company,  by  the  direction  of  the  witness  Widney, 
out  of  the  presence  of  the  accused,  and  some  seven  days  after 
the  commission  of  the  crime,  were  not  admissible  evidence  to 
prove  the  guilt  of  the  accused.  The  entries  in  the  books 
were  distinct  collateral  Tacts  irrelevant  to  the  issue. 

This  is  admitted  in  the  trial  judge's  statement. 

Conceding,  therefore,  that  the  witness  was  not  an  accomplice, 
but  a  <  -iinterested  witness,  under  the  pretense  of  corroborat- 
ing his  testimony  no  fact  could  be  stated  by  him  that  was  not 
admissible  evidence  against  the  accused. 

The  credit  of  a  witness  may  bo  impeached  by  proof  that  he 
has  made  statements  out  of  court  contrary  to  what  he  has 
testified  at  the  trial.  But  it  is  only  on  such  matters  as  are 
relevant  to  the  issue  that  the  witness  can  be  contradicted. 
Therefore  a  witness  can  not  be  examined  as  to  any  distinct 
collateral  fact  irrelevant  to  the  issue.  1  Wliart.  Cr.  Law,  par. 
817. 

Proof  of  declarations  made  by  a  witness  out  of  court  in  cor- 
roboration of  testimony  given  by  him  on  the  trial  is,  as  a  uni- 
versal rule,  inadmissible,  and,  a  fortiori,  a  witness  can  not  be 
allowed  to  corroborate  his  own  testimony  by  saying  that  he 
made  the  same  statements  previously  to  others.  So,  too,  where 
it  is  proved  that  a  witness  has  at  other  times  made  statements 


STATE  V.  CALLAHAN. 


119 


different  from  his  testimony,  the  party  offering  him  can  not  be 
allowed  to  support  his  testimony  by  proving  statements  at 
other  times  corroborative  of  such  testimony. 

The  witness  had  sworn  that  he  had  paid  $500  to  the  defend- 
ant to  bribe  him.  Seven  days  after  this  he  caused  to  be  made 
certain  entries  in  the  books  of  the  company  of  which  he  was  the 
agent  for  the  purpose  of  bribinir  defendant,  placing  the  $500 
to  the  account  of  the  city.  It  is  incomprehensible  how  such 
testimony  as  to  this  fact  of  the  entry  could  be  allowed  in  evi-: 
donee  to  corroborate  the  witness'  statement  to  the  bribery  of 
defendant  by  paying  him  cash,  §500. 

If  the  witness  had  voluntarily  sworn  falsely  to  matters  not 
within  the  issue  he  could  have  been  contradicted  as  to  those 
matters.     1  Whart.  Cr.  Law,  ]'ar.  SIS. 

JUit  it  is  not  pretended  in  this  case  that  the  witness  in  the 
examination  in  chief  had  voluntarily  sworn  to  any  matter  not 
within  the  issue  for  which  there  was  an  attempt  to  contradict 
him. 

The  greatest  latitude  in  impeaching  a  witness  by  proof  of 
his  having  previously  made  statements  inconsistent  with  his 
testimony  has  gone  no  further  than  to  allow  proof  of  other 
statements  made  by  him  in  accordance  with  his  testimony  on 
the  trial.    4  Blackf.  295;  6  Blackf.  300. 

The  witness  in  such  a  case  must  be  first  impeached,  and  there 
was  no  impeachment  of  the  witness'  testimony  on  any  fact 
that  would  justify  the  admission  of  the  evidence  as  being  in 
accordance  with  his  testimony  on  the  trial. 

According  to  the  statement  of  the  trial  judge  the  contra- 
diction of  witness'  testimony  was  to  impeach  the  whole  of  it 
"by  the  most  searching  interrogatories."  Hence  the  trial 
judge's  statement  is  that  the  veracit}^  of  the  witness  had  been 
attacked,  and  the  testimony  was  admitted  to  sustain  his  ve- 
racity. If  so,  the  '  nly  Avay  of  sustaining  it  was  by  proof  affect- 
ing his  character  for  truth  and  veracity,  and  the  examination 
must  be  confined  to  the  witness'  general  reputation  for  truth 
and  veracity.     Whart.  Cr.  Law,  par.  814. 

But  the  whole  controversy  in  this  case  is  narrowed  to  this : 

Can  evidence,  which  is  inadmissible  against  defendant  to 
establish  his  guilt,  be  permitted  to  go  to  the  jury  on  the  pretense 
of  sustaining  the  testimony  of  a  witness?  The  answer  must 
be  in  the  negative,  otherwise  no  rule  for  the  rejection  of  inad- 


^1 

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120 


AMERICAN  CRIMINAL  REPORTS. 


missible  evidence  could  be  invoked  to  exclude  it  from  the  con- 
sideration of  the  jury. 

The  trial  jud<:je  states  that  the  entries  contained  no  recital 
which  had  even  the  semblance  of  a  tendency  to  identify  or 
connect  the  accused  with  the  receipt  of  the  money. 

He  further  states  that  the  defenchint  attempted  to  prove  an 
alibi  by  weakening  the  testimony  of  the  witness  by  the  most 
searching  interrogatories,  and  thus  question  the  truth  of  every 
fact  sworn  to  by  the  witness. 

This  statement  alone  shows  the  utter  irrelevancy  of  the  testi- 
mony to  the  issues  in  the  case,  and  the  necessity  for  applying 
the  rules  of  evidence  referred  to  herein. 

I  concur  in  the  decree  for  the  reasons  stated  in  this  opinion. 

MiLLEK,  J.  One  proposition  presented  by  this  appeal  im- 
pressed me  at  the  time  of  the  oral  argument  as  of  imi)ortanco 
greater  than  that  of  any  other  question  discussed.  Tlie  con- 
viction Avas  on  testimony  in  part  derived  from  book  entries, 
admissible,  it  was  claimed,  to  confirm  a  witness  wlio  had 
testified  to  the  guilt  of  the  accused.  The  offenso,  accord- 
ing to  the  testimony,  had  been  committed  on  the  Tth,  and 
the  entries  directed  by  the  witness  made  on  the  15th,  No- 
vember. The  entries  carried  no  significance  whatever,  touch- 
ing the  accused.  They  were  debits  in  the  books  of  money 
paid  for  apparently  legitimate  ])urposes.  Their  tendency  to 
corroborate  the  witness  who  had  criminated  the  accused 
was  not  readily  appreciable  if  corroboration  implies  any- 
thing confirmatory  of  the  testimony  of  the  witness  in  res[)ect 
to  the  material  issue — the  guilt  of  the  party  charged  by  the 
accusing  witness  and  convicted  on  his  testimt)ny.  If  not  ad- 
missible as  corroborating  the  witness  on  the  issues,  for  which 
purpose  only,  in  my  o[)inion,  the  entries  were  otfered,  then 
the  conclusion  seemed  inevitable  that  the  conviction  was 
on  illegal  evidence  carrying  the  necessary  result  in  criminal 
cases.  It  would  be, as  it  impressed  my  mind.ditHcult  to  sustain 
a  verdict  on  testimony  brought  forward  to  serve  one  pur|)ose  for 
which  it  was  not  competent,  but  none  the  less  contributed  to 
obtain  a  verdict  from  the  jury  against  tiio  accused.  If  the 
evidence  was  not  admissible  as  corroboration  in  any  legal  sense, 
then  the  conviction  had  been  secured  on  these  entries  not  made 
by  the  accused,  nor  to  which  he  was  in  any  way  a  party,  but 


STATE  V.   CALLAHAN. 


121 


by  the  witness,  and  by  his  direction  placed  in  the  books  seven 
days  after  the  offense  is  stated  to  have  been  completed,  and  all 
connections  of  the  accused  with  the  accomplice  had  ceased. 

It  could  hardly  be  claimed,  nor  is  it  appreciated  to  be  urged, 
that  these  entries  could  be  deemed  part  of  the  res  (jestae.  Acts 
and  conduct  accompanying  the  ])articular  fact  under  investiga- 
tion are  considered  as  illustrating  its  character.  Such  acts  and 
conduct  arise  out  of  the  event,  admit  of  no  premeditation  and 
carry  the  sanctity  due  to  tiiem  as  concomitants  of  the  event 
itself.  Tliere  were,  as  is  gathered  from  the  bills,  two  inter- 
views, perhaps  more,  of  the  accused  with  the  witness.  The 
last  was  begun  and  ended  on  the  7th  Xovember  with  the  bribe 
then,  as  the  witness  testifies,  given  by  him  to  the  accused.  It 
was  seven  days  after  that  the  witness  gave  to  his  book-keeper 
the  directions  under  which  the  entries  were  made.  It  is  too 
manifest  to  need  the  least  discussion,  that  the  entries  formed  no 
part  of  the  res  gestae.     1  Greenl.  Ev.,  §§  108,  110. 

The  State  contended  for  the  admissibility  of  these  entries 
as  tending  to  confirm  the  witness.  He  had  testified  to  bribing 
the  accused  on  the  7th  November.  It  is  claimed  and  conceded 
in  the  argument  that  the  defense  had  afterward  assailed  the 
character  of  the  witness  for  truth  by  attributing  to  him  a  design 
to  misrepresent,  and  had  avowed  the  purpose  to  discredit  him. 
The  entries  offered  on  the  direct  examination  had  been  excluded, 
but  with  the  basis  claimed  to  have  been  afterward  furnished 
they  were  again  offered  and  received  over  the  objection  of  the 
defense.  It  was  an  attempt  to  sustain  the  statements  of  the 
accomplice  as  a  witness  by  his  book  entries.  The  rule  relied  on 
by  the  State  is,  that  when  the  character  of  a  witness  is  assailed 
on  cross^xami nation  the  part}-^  calling  him  may  support  the  tes- 
timony by  ])i'oof  of  statements  by  the  witness  on  other  occa- 
sions. Greenleaf  thus  states  it :  "  Statements  by  the  witness 
similar  to  what  he  has  testified  in  the  cause  are  not  admis- 
sible, unless  a  design  to  misrepresent  is  charged  on  the  witness 
in  consequence  of  his  relation  to  the  party  or  to  the  cause,  in 
which  case  it  seems  it  may  be  proper  to  show  he  made  a 
similar  statement  before  that  relation  existed."  1  Greenl., 
§  4G9.  The  rule  varied  in  form,  is  again  stated  thus :  "  Prior 
similar  statements  may  be  given  in  evidence,  made  before  an^' 
improper  motive  could  have  actuated  the  witness;  in  general, 
however,  prior  consistent  statements  can  not  be  adniitted." 


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122 


AMERICAN  CRIMINAL  REPORTS. 


ItJest's  Principles  of  Ev.  (Ed.  1883),  p.  633,  notes.  The  other 
text  writers  and  a  long  array  of  adjudications  state  the  rule 
substantially  the  same.  Admissibility  of  such  statements  is 
the  exception;  prohibition  is  the  rule.  The  guarded  terras  in 
wliich  the  rule  is  couched,  announce  the  limitations  as  to  the 
time  and  the  relations  of  the  witness  subsisting  when  the  state- 
ment is  made.  These  entries  were  made  seven  days  after  the 
bribe  was  given.  It  is  not  understood  that  the  argument  for 
the  defense  against  the  admissibility  of  the  evidence  is  based 
on  the  specific  ground  of  the  time  of  the  entries,  but  contro- 
verts its  admissibility  on  any  grounds. 

The  circumstances  under  which  the  State  claims  the  admis- 
sibility of  the  entries  are  these :  The  witness  had  testified  to 
bribing  the  accused  on  the  7th  November  by  giving  him  $500. 
The  defense  had  afterward  assailed  the  witness'  character,  and 
with  the  basis  furnished  by  this  attack  on  his  character  the 
State  offered  the  entries  to  support  his  veracity.  The  defense 
seems  to  concede  the  basis  existed  for  supporting  testimony, 
but  contend  the  entries  offered  for  that  purpose  were  forbid- 
den by  a  well-settled  rule  of  evidence.  AVliatever  the  scope 
of  the  rule  permitting  proof  of  similar  statements  by  the  as- 
sailed witness,  it  can  not  be  claimed  that  under  the  guise  of 
supporting  testimony,  illegal  evidence  can  be  put  before  the 
jury  to  affect  the  accused. 

The  act  under  which  the  defendant  is  indicted  makes  the 
giver  as  well  as  the  receiver  of  the  bribe  participants  in  the 
offense.  We  must  deal  with  tlie  witness  as  in  the  position  the 
law  puts  him.  It  is  settled  that  the  jury  may  convict  on  the 
testimony  of  an  accomplice.  Where,  however,  the  State, 
unwilling  to  rest  on  his  testimony,  seeks  to  confirm  it,  in  my 
view  vn  important  rule  of  evidence,  different  from  that  relied 
on  by  the  State,  is  called  into  operation.  In  the  argument  for 
the  State  this  is  called  a  rule  of  ]>ractice.  However  called, 
it  is  founded  on  experience  of  this  species  of  testimony  and 
requires,  if  such  corroboration  is  attempted,  it  shall  be  some- 
thing more  than  testimony  as  to  the  acts  or  conduct  of  the 
accomplice  to  be  supported.  The  confirmatory  proof  must 
relate  to  the  guilt  of  the  accused.  "The  accomplice  has  already 
testified  to  his  own  conduct.  To  be  confirmed,  reason  would 
suggest  that  the  corroboration  must  refer  to  the  guilt  of  the 


STATE  V.  CALLAHAN. 


123 


accused.    Corroboration  of  the  acts  of  the  accomplice  is  not 
in  any  sense  corroboration  of  the  crime  of  the  party  charged. 

Mr.  Greenleaf  states  there  :s  some  disagreement  as  to  the 
nature  and  extent  of  the  corroboration  required;  some  have 
deemed  it  sufficient  if  the  accomplice  is  confirmed  in  any  mate- 
rial i)art  of  the  case;  others  have  required  evidence  of  the  cor- 
pus delicti  only,  and  yet  others  who  thought  it  essential  there 
should  be  corroborating  proof  that  the  prisoner  participated  in 
the  offense,  and,  when  several  are  tried  the  confirmation  is  re- 
quired as  to  all;  the  confirmation  of  the  witness,  the  text 
adds,  is  no  confirmation  at  all,  as  it  respects  the  prisoner.  It  is 
manifest  the  proof  offered  here  solely  as  corroboratory  testi- 
mony meets  no  test  prescribed  by  Greenleaf.  lie  cites  approv- 
ingly the  rule  of  the  Supreme  Court  of  Massachusetts,  that  the 
confirmatory  testimony  must  relate  to  a  material  part  of  the 
case.  The  decisions  of  that  court  have  always  been  of  high 
repute.  The  earlier  decision  was  given  when  its  Chief  Justice 
was  a  great  jurist  and  the  associates  stood  high  in  the  appre- 
ciation of  the  bench  and  bar.  The  later  decision  was  pro- 
nounced by  Justice  Gray,  now  of  the  Supreme  Court  of  the 
United  States.     Com.  v.  Holmes,  127  Mass.  424. 

Those  decisions  carry  not  only  their  intrinsic  force,  but  have 
been  adopted  as  the  expositions  of  the  law,  by  Greenleaf,  the 
leading  text  book  on  this  branch  of  the  law  as  well  as  by  the 
later  writers.  Rice,  Ev.  The  Massachusetts  case  puts  the 
question — "What  is  corroboration?"  and  answers  it.  It  must 
relate  to  the  guilt  of  the  accused.  To  prove  the  accomplice  has 
told  the  truth  as  to  irrelevant  and  immaterial  matters  known 
to  everybody  would  have  no  tendency  to  contirm  his  testimony 
involving  the  guilt  of  the  party  on  trial.  If  this  were  the  case, 
every  witness  could  always  furnish  materials  for  the  corrob- 
oration of  his  own  testimony.  If  he  could  state  "  where  he 
was  born,"  and  the  decision  goes  on  to  enumerate  other  unim- 
portant points,  ho  might  easily  get  confirmation  of  all  these 
particulars.  But  these  circumstances  having  no  necessary  con- 
nection with  the  guilt  of  the  accused. 

Proof  of  the  correctness  of  the  statements  in  respect  to  them 
would  not  conduce  to  prove  the  statement  of  the  guilt  of  the 
doftMidant.  There  is  no  substantial  difference  developed  by  the 
authorities  on  the  principle  so  well  stated  by  the  Massachusetts 
court.    The  decision  in  the  first  case  was  years  ago;  and  in 


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If 


*:\ 


124 


AMERICAN  CRIMINAL  REPORTS. 


the  later  decision,  Justice  Gray  being  the  organ,  the  rule  as  to 
the  corroborati . e  testimony  of  an  accomplice  was  afiirmed  in 
the  strongest  language,  as  laid  down  in  the  earlier  case. 

The  adjudications  of  other  courts,  notably  of  Pennsylvania 
and  Georo-ia,  are  to  the  same  eifect.  In  the  last  case  of  the 
Massachusetts  courf,  the  prisoner,  indicted  for  arson,  was  con- 
victed on  th'^  tes'  .;•'  of  an  accomplice.  lie  was  conlirmed 
in  various  partic  •  o''\is  conduct  to  which  he  had  testilied 
on  the  stand,  liias  he  liad  testified  that  on  the  night  of  the 
crime  he  had  v.'-dked  around  town,  gone  to  a  lecture,  met 
with  companionb;  Ic;;  'ng  tV  ■:  ,  had  approached  the  barn,  and 
saw  the  accused  with  burning  st,  viw  in  his  hands  who  ad- 
mitted he  had  fired  the  barn;  that  he  then  went  away,  reached 
his  father's  home  about  midnight  and  went  to  bed.  The  wit- 
ness further  testified  that  later  the  accused  gave  him  some 
bank  bills  as  he  had  promised.  The  accomplice  was  confirmed 
bv  the  testimony  of  others  on  all  the  points  of  his  testimony 
except  as  to  the  material  issue — the  guilt  of  the  prisoner;  tluit 
is  to  sav,  by  other  testimony  he  was  confirmed  in  his  state- 
ments as  to  his  walk,  his  visit  to  the  lecture  room,  the  com- 
pany he  met,  the  time  he  went  to  bed,  and  finally  tluit  he  had 
been  seen  with  bills  in  his  hands,  like  those  to  which  he  testi- 
fied. It  will  be  perceived  that  none  of  the  corroborating  tes- 
timony touched  the  guilt  of  the  prisoner.  All  was  admitted 
over  the  objection  of  the  defense.  The  ])arallel  between  that 
and  the  instant  case  is  obvious.  Here,  the  corroborating  tes- 
timony relates  only  to  the  conduct  of  the  accomplice.  It 
confirms  him  in  these  particulars  t6  which  he  testified — that 
he  gave  directions  to  his  book-keeper  to  enter  on  the  books  the 
amount  of  the  bribe,  and  the  entries  were  made.  The  corrob- 
oration does  not,  in  the  faintest  degree,  bear  on  the  guilt  of 
the  accused.  In  the  Massachusetts  case,  decided  by  Justice 
Gray,  the  proof  was  deemed  inadmissible  as  irrelevant  and  in- 
competent, the  court  holding  that  no  evidence  can  be  legally 
admitted  as  competent  for  corroboration  of  the  accomplice 
that  does  not  conlirm  the  testimony  on  a  point  material  to  the 
issue  in  the  sense  it  tends  to  ])rove  the  guilt  of  the  accused. 
As  we  appreciate  the  argument  of  the  State  on  this  point,  the 
reliance  is  solely  on  the  right  of  the  party  calling  the  witness 
to  support  his  credit  by  proof  of  similar  statements  on  other 
occasions,  and  hence  the  State  cites  Iloscoe,  Starkie  and  a  large 


STATE  V.  CALLAHAN. 


125 


array  of  decisions.  There  is  no  controversy  here  as  to  the 
rifht  to  sustain  a  witness  by  proof  of  similar  statements  in 
those  cases  where  the  rule  applies.  Kor  is  there  any  conten- 
tion that  a  basis  for  such  supporting  testimony  is  afforded  by 
questions  on  cross-examination,  or  other  modes  denoting  the 
purpose  to  discredit  the  witness.  To  this  supposed  contention 
much  of  the  argument  of  the  State  has  been  directed.  The 
real  issue  is,  whether  any  corroborative  testimony  is  competent 
to  sustain  an  accomplice  that  does  not  confirm  his  testimony 
as  to  the  guilt  of  the  prisoner.  It  is  the  question  as  to  the 
corroboration  required  in  the  case  of  the  accomplice  we  have 
to  deal  with  here,  and  not  the  other  issue  to  which  the  argu- 
ment and  authorities  of  the  State  have  been  largely  directed — 
i.  e.,  the  general  rule  that  an  assailed  witness  may  be  supported 
by  proof  of  his  similar  statements  on  otht  r  occasions.  It  is 
stated  in  the  bills  that  the  entries  are  offered  for  corroboration, 
not  of  the  facts  that  fix  guilt  on  the  accused,  but  to  confirm 
the  witness'  narrative  as  far  as  possible,  and  to  sustain  his 
veracity.  The  only  tendency  of  the  entries  is  to  show  the  ac- 
complice told  the  truth  in  respect  to  directing  the  entries,  and 
that  they  were  made.  To  that  extent  they  sustain  his  ve- 
racity, and  no  further.  It  is  conceded  they  have  not  the 
remotest  tendency  to  fix  the  guilt  of  the  accused.  If  Justice 
Gray's  exposition  of  the  law  is  correct,  surely  the  evidence 
falls  within  the  prohibition  he  so  clearly  announces.  He  was 
dealing  with  corroborating  testimony  as  to  facts  stated  by  the 
witness,  not  pertaining  to  the  guilt  of  the  prisoner.  Here  the 
Courtis  dealing  with  corroboratory  evidence  of  facts  testified 
to  by  the  witness,  but  not  bearing  on  the  guilt  of  the  accused. 
Justice  Gray  held  that  no  such  testimony  could  be  admitted  to 
corroborate  an  accomplice.  It  was  incompetent  and  irrelevant, 
in  his  view,  unless  it  tended  to  prove  the  guilt  of  the  accused. 
It  must  appear  that  to  hold  these  entries  competent  evidence, 
we  must  determine  that  the  construction  of  the  law  by  these 
two  decisions  of  the  highest  court  of  Massachusetts  is  erroneous. 
There  must  also  be  denied  to  the  text  writers  the  authority 
accustomed  to  be  paid  to  them.  At  an  early  period  our  Leg- 
islature declared  that  the  forms  of  proceeding  and  rules  of  evi- 
dence in  criminal  cases  should  be  according  to  the  common  law. 
For  more  than  ninety  years  our  courts  have  been  guided  by  that 
system,  and  the  judicial  expositions  of  its  principles  and  of  its 


i/tfra 


126 


AMERICAN  CRIMINAL  REPORTS. 


rules  of  evidence  in  criminal  cases.  See  Act  1S05,  now  section 
976,  Kev.  St.;  State  v.  McCoy,  S  Rob.  .54.5;  State  v.  Lacomhe, 
12  Ann.  195.  A  rule  of  evidence  in  criminal  proceedinfjs  ob- 
served in  the  common-law  courts,  that  testimony  offered  to 
support  an  accomplice  is  not  competent,  that  confirms  only  as 
to  facts  not  touching  the  guilt  of  the  prisoner,  is  commended 
by  a  force  of  reason  and  authority  that  the  legal  mind  finds 
difficult  to  resist. 

The  sequence  of  the  introduction  of  improper  evidence 
against  the  accused  is  apparent.  The  testimony  offered  to 
corroborate  proving  nothing  in  respect  to  the  guilt  of  the  ac- 
cused, advances  in  no  respect  the  solution  of  the  issue  of  guilt. 
Under  the  guise  of  corroboration  it  serves  to  put  before  the 
jury  incompetent  evidence  to  affect  the  prisoner.  That  effect 
was  the  precise  question  determined  in  the  Massachusetts  cases 
thus  stated  in  the  clearest  language  by  the  learned  judge  in 
the  last  case.  Determining  that  no  evidence  can  be  admitted 
as  competent  for  corroboration  that  does  not  tend  to  prove 
the  guilt  of  the  accused,  the  result  is,  as  he  states  it,  that  if 
any  evidence  is  admitted  by  way  of  corroborating  the  accom- 
plice, so  as  to  make  it  safe  for  the  jury  to  convict,  which  is 
not  legally  entitled  to  that  effect,  it  is  a  subject  of  exception 
and  a  ground  for  a  new  trial.  That  must  be  the  result  here, 
or  the  rule  of  law  disregarded. 

The  admission  of  illegal  evidence  in  a  civil  case  is  com- 
paratively unimportant.  The  judge  disregards  the  incompe- 
tent evidence,  and  the  judgment  is  based  on  that  which  is 
legal.  But  in  a  criminal  case  the  judge  has  no  such  function. 
It  is  for  the  jury  to  convict,  and  is  presumed  to  act  on  all  the 
evidence  submitted.  It  is  impossible  to  determine  what  influ- 
ence has  been  exerted  on  their  minds  by  illegal  evidence,  and  it 
is  the  right  of  the  accused  to  be  tried  on  legal  evidence  alone. 
If  that  right  has  been  invaded  there  has  not  been  the  fair 
trial  guaranteed  to  all  by  the  Constitution  and  laws.  Hence 
this  court  is  powerless  to  accept  any  suggestion,  even  if  it  were 
mad6,  that  without  the  improper  evidence  there  was  enough 
to  convict.  To  this  effect  is  the  uniform  current  of  all  author- 
ity well  epitomized  thus :  The  admission  of  illegal  evidence 
can  not  be  disregarded  on  the  ground  that  the  other  evidence 
in  the  cause  was  sufficient  to  convict.  The  conviction  must  be 
by  legal  evidence  only.    And  again,  thus :    The  court  can  not 


STATE  V.  CALLAHAN. 


127 


look  into  the  whole  case  to  determine  whether  or  not  there  is 
other  testimony  suHicient  to  establish  the  defendant's  guilt. 
To  do  so  would  be,  in  effect,  to  set  aside  the  verdict  of  the  jury, 
and  to  form  conclusions  for  ourselves  from  the  evidence.  The 
defendant  is  entitled  to  the  verdict  of  a  jury  upon  compe- 
tent testimony  alone. 

The  rules  of  evidence  are  for  all  time  and  for  all  men.  They 
tend  to  secure  the  conviction  and  punishment  of  the  guilty. 
They  have  the  no  less  important  function  of  guarding  the 
rhdits  of  the  innocent  who  may  be  accused  of  crime.  It  is  bad 
if  the  guilty  sometimes  escape.  It  would  be  worse  if  criminal 
trials  were  conducted  Avithout  regard  to  those  rules  the  wis- 
dom of  the  law  has  provided  for  the  guidance  of  courts. 

The  new  trial  being  inevitable,  it  is  proper  to  state  that,  in 
my  opinion,  the  act  of  1800  is  applicable  to  the  offense  charged. 
Tlie  accused  can  be  tried  again  on  that  indictment,  and  this 
opinion  simply  indicates  the  illegal  evidence  to  be  excluded. 
I  concur  in  the  decree. 

Dissenting  opinion  regarding  the  interruption  of  counsel : 

Bkkaux,  J.  The  trial  court  certilies  that  it  had  decided 
that  Act  No,  78  of  1 890  applied  if  the  defendant  was  guilty 
of  having  received  a  bribe. 

The  court's  statement  in  the  bill  of  exceptions  is  sustained 
by  the  record. 

An  indictment  against  the  defendant  for  the  offense  charged 
hud  been  quashed  on  the  ground  that  the  act  of  1890  applied. 
In  the  case  at  bar  a  demurrer  on  the  ground  that  the  defend- 
ant was  not  bound  to  answer  had  been  tiled  and  overruled. 
The  court  had  in  these  proceedings  laid  down  its  interpreta- 
tion of  the  act  in  question. 

The  opinion  of  counsel  regarding  the  law  differed  from  the 
ruling  of  the  court.  One  of  counsel,  addressing  the  jury, 
read  Art.  168  of  the  Constitution:  and  continuing  his  ar<ru- 
ment  referred  to  the  act  of  1890,  and  stated  to  the  jury  that 
as  to  the  receiver  of  a  bribe,  the  statute  is  plain,  that  the  only 
persons  contemplated,  were  the  officers  and  members  of  the 
General  Assembly,  and  counsel  was  interrupted  at  this  point 
by  the  court,  and  was  informed  that,  if  he  intended  to  ques- 
tion the  applicability  of  the  statute,  he  would  not  be  per- 
mitted. 


'a 


>  mi 


^^ 


128 


AMERICAN  CRIMINAL  REPORTS. 


Wo  liavo  seen  that  the  court  hnd  previously  ruled. 

If  the  trial  court  is  suhjcctetl  to  a  review  of  its  ruling 
before  the  jury,  and  to  an  appeal  to  them  for  their  reversal 
of  tlie  ruling  by  their  verdict,  it  will  be  subversive  of  the 
respect  duo  to  that  tribunal. 

The  jury  should  have  confidence  in  the  ability  of  the  trial 
judge  to  properly  interpret  the  law,  and  the  judge  should  feel 
confident  of  the  desire  of  the  jury  to  discharge  their  duty. 
That  confidence  will  be  shaken  if  an  appeal  be  allowed  from 
the  court  to  the  jury.  We  have  found  no  decision  favorable 
to  such  an  appeal,  either  English  or  American,  to  which  at- 
tention has  been  called. 

The  case  of  the  Dean  of  St.  Asaph,  made  illustrious  by  the 
address  of  Erskine,  the  greatest  advocate  and  forensic  orator 
of  his  age,  is  cited  by  defendant's  counsel. 

The  position  of  the  defense  has  no  support  in  this  case,  as 
will  apjiear  by  a  brief  review. 

The  dean,  was  one  of  a  groat  many  respectable  gentlemen, 
impressed  by  the  danger  to  the  public  credit  occasioned  by 
long  war,  and,  oppressed  by  grievous  taxes,  published  a  sug- 
gestive and  guarded  dialogue  between  a  farmer  and  scholar, 
in  which  the  scholar,  meaning  to  illustrate  the  great  principle 
of  good  government,  asked  the  farmer  a  number  of  suggest- 
ive questions,  which  the  public  prosecutor  charged  were  sedi- 
tious and  conceived  to  excite  disloyalty  and  disaffection. 

The  dean  was  brought  to- trial  as  one  of  the  principal  of- 
fenders. In  defending  him,  Erskine  argued  against  the 
restraint  placed  on  the  jury  by  the  court. 

The  juries,  at  the  time,  in  all  cases  of  alleged  libel  and 
treason,  were  confined  to  a  finding  of  the  fact  of  publication 
as  charged. 

They  were  not  permitted  to  determine  whether  it  was  or 
not  a 'libel  or  sedition. 

Erskine  contended  that  it  was  a  question  of  libel  or  no  libel, 
sedition  or  no  sedition,  and  not  a  question  exclusively  of  pub- 
lication, and  that  the  jury  should  exercise  jurisdiction  over  the 
whole  charge.  His  address  paved  the  way  for  greater  rights 
to  juries  in  the  administration  of  criminal  justice. 

He,  with  great  clearness,  admits  that  an  accused  can  not 
claim  before  the  jury  the  protection  of  a  deficient  "indictment. 


STATE  V.  CALLAHAN. 


129 


liUt  ho  claimed  that  tho  jur}''  should  exercise  jurisdiction  over 
the  whole  charge  in  finding  a  verdict. 

The  constitution  of  1879,  of  this  State,  has  applied  the  prin- 
ciple for  which  he  contended  by  ordaining  that  the  jury  shall 
bo  the  judges  of  the  law  and  the  facts  after  the  charge,  and 
not  of  questions  of  law  arising  during  the  trial  and  necessa- 
rily decided  before  the  case  goes  to  the  jury. 

A  text  writer,  referred  to  by  the  defendant's  counsel  in  this 
case,  said  that  at  the  time  of  the  foundation  of  the  English 
colonies  in  this  country  there  was  a  very  strong  feeling  against 
arbitrary  power,  as  the  colonies  had  painful  recollections  of 
the  abuse  of  judicial  power  in  the  mother  country,  and  there- 
fore it  was  natural  that  they  should  seek  to  enlarge  the  power 
of  the  jury  and  diminish  that  of  the  judge.  Hence,  the  doc- 
trine that  tho  jury  could  take  away  the  law  into  their  hands 
without  regard  to  the  judge's  charge — popular  before  and  at 
the  time  of  tho  Revolution. 

Even  if  the  preponderance  of  judicial  authority  was  not,  in 
this  country,  as  it  is,  in  favor  of  the  doctrine  that  the  jury 
should  take  the  law  from  the  court  and  apply  it  to  the  evi- 
dence under  its  direction,  under  the  doctrine  popular  before 
and  at  the  time  of  the  Revolution,  regarding  the  rights  of  ju- 
ries, an  appellate  court  will  find  no  authority  to  grant  a  new 
trial  and  remand  a  case  to  enable  the  defense  to  argue  a  prop- 
osition not  founded  in  law.  The  avowed  purpose  of  the  de- 
fendant was  to  argue  a  proposition  that  the  trial  court  bad 
decided  illegally,  and  tho  ruling  is  affirmed  by  this  court. 

What  useful  purpose  would  be  served  in  thus  remanding  the 
case  as  applied  for?  Surely,  not  to  enable  the  jury  to  reach 
a  different  conclusion  in  regard  to  the  act  of  1S90,  relative  to 
bribes. 

The  facts  which  form  the  basis  of  the  third  and  fourth  bills 
of  exceptions  are : 

That  to  tho  witness,  Widney,  the  District  Attorney  pro- 
pounded questions  as  to  who  furnished  the  amount  of  the  al- 
leged bribe. 

The  objection  was  that  the  evidence  was  not  admissible  for 
the  reason  that  conversations  between  third  persons  tending 
to  implicate  the  defendant,  but  not  had  in  his  presence,  is 
irrelevant. 


-;« 


I*  (* 


T^ 


fki 


"t  H'i 


J, 


130 


AMERICAN  CRIMINAL  REPORTS. 


Tliore  wcro  three  parties  to  the  agreement  regarding  the 
alleged  bribe— Widnoy,  Wood  and  Callahan. 

In  coini)liance  with  the  agreement  entered  into  by  these  par- 
ties, in  person,  the  witness  testifies  ho  paid  the  amount.  Wood 
was  not  a  third  person  to  the  agreement.  lie  and  Widney 
had  interviews  with  the  defendant,  and  acted  concurrently  in 
the  matter  of  securing  a  privilege  from  the  council  through 
tlie  defendant. 

Moreover,  the  judge  certifies  that  the  fact  sought  to  be  elic- 
ited by  the  question  objected  to  had  gone  to  the  jury  when 
the  objection  was  made  in  answer  to  questions  previously 
propounded. 

The  admissibility  of  testimony  can  not  be  determined  if  tlie 
complaint  is  first  made  when  the  statement  of  a  witness  is  re- 
iterated. State  V.  Holmes,  40  Ann.  170;  State  v.  Donelon,  45 
Ann.  775.    l*art  of  the  res  gestae. 

Question  also  arose  regarding  the  admissibility  of  the 
"stub"  to  identify  the  check,  cash  book  and  ledger.  With 
reference  to  the  first,  the  trial  judge  certifies  that  over  the  ob- 
jections of  counsel  for  defendant  he  ruled  that  the  stub  of  a 
check  drawn  to  bearer  for  $500,  and  dated  November  7,  1893, 
with  pencil  mark,  "  Ent.  15 "  written  across,  was  admissible 
as  part  of  the  res  gestae.  To  the  ruling,  counsel  for  the  de- 
fendant excepted.  It  was  a  contemporaneous  entry  with  the 
alleged  bribe  and  part  of  the  transaction.  It  was  immediately 
incident  to  the  principal  act;  part  of  the  direct  concomitant 
or  conditions  of  the  act.    Whart.  Cr.  Ev.  (9th  Ed.),  par.  266. 

The  following  is  from  Thompson  on  Trials  (page  460),  and 
has  some  bearing :  "  And  where  an  accomplice  testifies  that 
he  had  paid  a  bribe  to  the  defendant  (on  trial  for  bribery)  by 
giving  to  the  defendant  a  check  upon  a  certain  bank,  payable 
to  cash  or  bearer,  which  had  afterward  been  returned  by  said 
bank  to  the  witness,  it  was  ci  .iipetent  for  the  State,  in  corrob- 
oration, to  show  by  the  books  and  business  memoranda  of  the 
bank  a  credit  to  the  defendant  for  a  like  amount,  deposited 
by  check  two  days  after  the  alleged  bribery." 

Stub  and  entry  in  book  are  closely  related. 

This  evidence  being  admissible,  and  the  stub  admitted  being 
identified  on  its  face  with  the  entries  in  the  books,  to  which 
the  most  serious  objections  are  made,  it  does  not  seem  that 
entries  thus  identified  are  inadmissible,  as  they  are  part  of 


STATE  V.  CALLAHAN. 


131 


one  act;  that  the  law  supporting  the  admissibility  of  the  stub 
goes  far  toward  justifying  the  admissibility  of  the  entries  in 
the  cash  book  antl  ledger.  They  are  intimately  connected,  and 
among  business  men  the  existence  of  check  and  stub  suggests 
proper  entry  in  cash  book  and  ledger. 

In  the  lower  court  a  distinction  was  made  between  the 
check  and  stub  and  the  entries  in  the  books.  The  latter — the 
entries— were  finally  admitted. 

The  prosecuting  officers  state  that  the  entries  in  the  books 
of  the  Pennsylvania  Coal  Company  were  not  offered  for  the 
purpose  of  corroborating  the  testimony  of  an  accomplit-o  as  to 
tiiose  facts  which  fix  the  guilt  of  the  accused,  but  for  the  pur- 
pose of  sustaining  his  veracity. 

On  the  part  of  the  defense  it  is  urged  that  the  evidence  was 
admitted  to  corroborate  an  accomplice.  The  court  certifies 
that  the  evidence  was  not  admitted  for  the  purpose  of  corrob- 
orating the  testimony  of  an  accomplice,  as  contended  by  the 
defendant;  that  on  the  cross-examination  of  the  witness,  Wid- 
ney,  there  was  an  attack  made  upon  his  veracity,  and  that  the 
defendant  had  laid  the  foundation  for  impeaching  his  testi- 
mony, by  propounding  questions  to  that  end;  that  without 
the  testimony  the  State  would  have  been  left  in  a  crippled 
condition  without  an  opportunity  of  repairing  the  effect  of 
tlie  attack  upon  the  veracity  of  the  witness;  that  the  avowed 
])urpose  of  the  cross-examination  of  the  witness  had  been  to 
show  that  his  statement,  with  reference  to  the  alleged  bribe, 
was  a  fabrication  of  recent  date,  and  that  witness'  state- 
ment subsequent  to  the  1 5th  of  November  (the  date  of  the 
entries  in  the  books)  would  establish  the  fabrication.  The 
principle  is  well  settled  that  if  evidence  had  been  offered  to 
show  bias,  improper  motive  or  recent  fabrication  on  the  part 
of  a  witness,  previous  account,  given  at  a  time  unsuspicious, 
is  admissible  on  a  redirect  examination.  Best's  Principles  of 
Ev.  In  People  v.  Vane,  12  Wend.  79,  it  was  decided  that  the 
rule  applies  to  an  accomplice : 

"  The  witness  shows  on  his  direct  examination  that  he  was 
an  accomplice.  His  testimony  is,  therefore,  suspicious;  it 
comes  from  a  tainted  source  and  may  well  be  doubted.  In 
such  a  case  it  seems  to  me  the  principle  applies,  that  a  witness 
who  is  impeached  may  be  supported.  *  *  *  The  rule  is 
laid  down  by  Macauley,  that  what  a  witness  has  been  heard  to 


I 


'iA 

U9 


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f   5.V3 


<M 


iiil 


J;^?''""'" 


132 


AMERICAN  CRIMINAL  REPORTS. 


say  at  another  time  may  be  given  in  evidence  either  to  invali- 
date or  confirm  the  testimony  which  he  gives  in  court."  In 
Coin.  V.  Scott,  123  Mass.  222-238,  referring  to  Com.  v.  Bosworth, 
22  Pick.  397,  it  is  said :  "  In  that  case  (Bosworth),  that  the 
evidence  in  corroboration  of  the  accomplice  was  admissible." 
See  also  State  v.  IlendricTcs,  32  Kan.  659,  563. 

From  Bishop  on  Criminal  Procedure  (page  1170),  we  quote: 
"  Not  inconsistently  with  these  views  it  is  permissible  also  to 
submit  to  the  consideration  of  the  jury,  evidence  tending  to 
show  the  accomplice's  probable  credibility,  in  his  narrative, 
though  coming  short  of  the  required  confirmation."  That  rule 
is  approvingly  referred  to  in  State  v.  BanTcs  et  al.,  40  Ann.  739, 
in  deciding  a  point  similar  in  some  respects.  The  evidence 
was  not  admissible  for  the  purpose  of  corroborating  the  testi- 
mony of  an  accomplice.  It  was  admissible  to  prove  the  fact — 
the  entry  in  the  employer's  books — in  regard  to  which  he  was 
impeached  on  cross-examination. 

At  the  time  the  entries  were  made,  it  was  not  self-serving, 
but  it  was  the  reverse,  self-harming,  evidence  of  an  agreement 
reprobated  and  denounced  by  law.  The  State  attempted  to 
sustain  his  testimony,  assailed,  by  offering  book  entries  to 
establish  that  he  had  withdrawn  the  .amount  from  the  busi- 
ness in  his  charge  as  agent.  The  fact  had  been  previously 
proved  by  the  "  stub  book,"  identified  with  the  entries.  The 
former — the  "  stub  book" — was  legal  evidence  it  is  now  de- 
cided. 

Mr.  Eapalje,  in  his  treatise  on  the  "  Law  of  Witnesses,"  (page 
252,)  under  the  headnote  "  Cross-examination  of  Accomplices," 
explains  that  the  chapter  regarding  witnesses,  applies  equally 
to  compliances, except  "  th~*  ^^^o  latitude  of  cross-examination 
is  especially  extended  where  the  Avitness  is  an  accomplice, 
in  allowing  questions  having  a  tendency  to  shake  his  credit 
by  injuring  his  character,  or  to  prove  his  accuracy  or  verac- 
ity; and  in  such  matters  is  left  to  the  enlightened  discretion 
of  the  court  trying  the  cause,  and  its  action  Avill  not  be 
reversed  unless  such  discretion  appear  to  have  been  abused;" 
and  when  this  cross-examination  "  tends  to  create  a  distrust  of 
his  integrity,  fidelity  or  truth,  it  was  held  competent  for  the 
adverse  party  to  ask  the  witness  an  explanation  which  might 
show  the  consistency  of  such  facts  with  his  integrity,  fidelity 
and  truth,  although  circumstances  might  thus  be  proved  which 


STATE  V.  CALLAHAN. 


133 


were  foreign  to  the  principal  issue,  and  which,  but  for  such 
previous  examination,  would  not  have  been  permitted  to  be 
proved." 

No  one  denies  that  the  object  of  the  law  of  evidence  is  the 
discovery  of  truth  under  systematic  methods.  It  should  also 
be  conceded,  for  it  is  the  law,  that  a  witness  may  be  sustained, 
whether  impeached  on  cross-examination,  or  by  examining  other 
witnesses  in  rebuttal. 

This  being  the  rule,  let  us  assume,  for  illustration,  that  the 
amount  was  $10,000,  instead  of  §500,  and  that  the  defense  had 
produced  evidence  in  rebuttal  in  proof  of  the  utter  impossi- 
bility of  the  witness  having  given  that  amount  for  reasons  stated 
by  the  impeaching  witnesses. 

Evidence,  under  the  circumstances,  is  admissible  only  to  sus- 
tain the  witness  in  the  statement  that  the  employer's  cash  fur- 
nished the  amount,  as  shown  by  stub,  cash  book  and  ledger, 
if  there  is  not  the  least  ground  to  suspect  that  the  evidence  is 
untrue;  and  admissible  only  to  establish  that  the  witness  did 
not  state  an  untruth  when  he  swore  that  he  had  the  amount. 
As  to  whether  he  gave  it  or  not  as  a  bribe  is  another  matter. 
It  does  seem  that  these  instruments  of  evidence  are  admissible 
exclusively  to  prove  that  that  sum  was  from  the  business  of 
tba  employer,  although  charged  as  in  this  case.  State  v.  Hen- 
drichs,  32  Kan.  559,  563;  State  v.  Mauri/,  54  Conn.  178-191; 
StaUv.  Wolcott,  21  Conn.  272-281. 

THE  ALLEGED  KEFERENCE  TO  DEFENDANT. 

It  is  error  if  the  court  permit  counsel,  against  defendant's 
objection,  in  addressing  the  jury,  to  comment  on  the  omission 
of  the  defendant  to  testify  as  a  fact  for  consideration  in 
determining  the  case. 

The  facts  which  form  the  basis  of  the  bill  of  exceptions  to 
the  court's  ruling  refusing  to  treat  the  whole  case  as  a  nullity, 
because  of  a  remark  of  the  assistant  district  attorney,  are  that, 
in  addressing  the  jury,  he  said  :  "Who  has  denied  that  the 
defendant  has  received  five  hundred  dollars  ?  The  accused  has 
not  denied  it.  I  have  not  heard  him  deny  it; "  to  which  coun- 
sel for  the  defendant  called  attention  of  the  court,  and  in- 
structed the  jury  that  they  must  disregard  the  remarks  of  the 
assistant  district  attorney. 

That  the  prosecuting  officer  then  continued  his  address  to  the 


KE    )- 


I   >, 

f 


I  -i 


u 


184 


AMERICAN  CRIMINAL  REPORTS. 


J.M 


jury,  saying,  in  substance :  "  I  meant  that  there  was  no  testi- 
mony in  the  case  to  prove  that  Callahan  denied  accepting  or 
getting  the  money,  and  there  has  been  no  scintilla  of  evidence 
contradicting  the  statement  of  Wood  and  Widney,  and  that 
he  meant  no  personal  allusion  to  Callahan." 

The  jury  were  also  instructed  in  the  general  charge  th.at 
they  were  not  to  construe  anything  unfavorable  to  the  accused 
by  reason  of  the  fact  that  he  had  not  testified.  If,  despite  the 
explanation  and  Avithdrawal  of  the  remarks  by  the  district 
attorney,  there  lurked  the  least  presumption  in  the  minds  of 
the  jurors,  it  must  have  been  removed  by  the  instruction  of 
the  court.  The  allusion  and  the  correction  brought  out  prom- 
inently that  no  inference  was  to  be  drawn  against  the  accused 
from  his  omission  to  testify.  It  was,  at  most,  a  hasty  utter- 
ance immediately  corrected  by  cautioning  the  jury  against 
giving  it  the  least  importance.  "  The  judge  is  not  required  to 
treat  the  whole  case  as  a  nullity  because  of  such  remarks." 
Com.  V.  Worcester,  141  Mass.  5S,  59;  Whart.  Cr.  Ev.  (9th  Ed.), 
p.  435;  Eap.  Law  of  Wit.,  252. 

THE   INSTRUCTIONS   GIVEN   TO  THE   JURT. 

Lastly,  the  defendant  requested  the  trial  judge  to  instruct 
the  jury  that,  if  it  was  the  duty  of  the  accused  to  favor  and 
vote  for  the  ordinance  of  the  council  in  question,  and  if  he  did 
favor  and  vote  for  it,  without  partiality  and  fa\or,  as  a  matter 
of  law  the  accused  was  not  guilty.  The  court  gave  the  charge 
reqaested,and  added  (to  which  addition  thedefendantobjected) : 
"  But  I  charge  you  further,  that  if  he  voted  for  it  and  favored 
it  by  reason  of  the  fact  that  he  was  paid  for  it,  he  would  have 
acted  with  partiality  or  favor,  and  if  you  should  so  find  beyond 
a  reasonable  doubt  he  would  be  guilty." 

The  theory  of  the  defense  was,  if  the  accused  received  the 
amount  he  was  guilty  of  extortion  in  office,  and  not  of  receiv- 
ing a  bribe. 

Eequiring  an  amount  for  a  vote  is  the  crime  denounced. 

When  the  statute  of  1890  was  adopted,  there  were  statutes 
in  the  books  denouncing  extortion  in  office. 

Nevertheless,  the  law-maker  created  a  new  offense,  and  pro- 
vided more  severe  penalties.  It  is  not  within  the  authority  of 
the  courts  to  restrict  or  change  the  legislative  intent  as  ex- 
pressed in  the  text.    The  office  is  honorary,  without  emolu- 


BROOKS  V.  STATE. 


135 


ment  of  any  kind.  If  he  accepted  an  amount  which  influenced 
him  to  vote  with  partiality  or  favor,  the  offense  was  within 
the  meaning  of  the  statute. 


The  Chief  Justice  concurs  in  this  dissent. 
Eehearing  refused. 

Note. — Election — What  is.— The  selection  by  the  council  of  the  president 
of  the  board,  is  an  **  election,"  within  the  meaning  of  the  Kentucky  statute, 
prohibiting  the  offering  of  a  bribe  to  influence  one's  vote  at  an  "  election." 
Com.  V.  Uoot,  96  Ky.  533. 

Section  1437,  providing  that  whenever  in  said  chapter  41,  the  word  "elec- 
tion," or  an  equivalent  expression  is  used  in  reference  to  a  State,  district  or 
municipal  election,  it  shall  be  deemed  to  include  the  decision  of  questions 
submitted  to  the  qualified  voters  as  well  as  the  election  of  officers,  does  not 
restrict  the  meaning  of  the  word.    Id. 

Indictment. — Under  the  Kentucky  statute,  providing  that  a  bribe  is  any 
reward  to  the  person  influenced,  or  intended  to  be  influenced,  or  to  another 
"at  his  instance,"  an  indictment  which,  thougli  not  alleging  that  the  re- 
ward offered  to  another  than  the  voter  was  offered  at  the  voter's  instance, 
alleges  that  it  was  offered  to  such  other  person  with  intent  to  influence  the 
voter,  and  did  influence  and  control  the  voter  in  his  vote,  is  sufficient. 
Com.  V.  Root,  96  Ky.  533. 

Instructions. — A  mature  person  of  ordinary  intelligence,  who  knowingly 
offers  as  a  bribe  to  a  juror,  money  given  her  for  that  purpose,  becomes  an 
accomplice.    State  v.  Carr.  28  Or.  389. 

Same. — The  offer  of  a  bribe  upon  the  suggestion  of  an  officer  that  he  will 
accept  it  is  not  punishable.     O'Brien  v.  State,  6  Tex.  App.  665. 


If. 


&->J| 


^^  i-ti 


,  t 


in 


Erooks  v.  State. 


(96  Ga.  353.) 

Burglary:    Hearsay  evidence— Burglary — Possession  of  stolen  goods — Pre- 
auvijitions — Mequests  to  charge. 

1.  The  declarations  of  an  alleged  owner,  claiming  certain  goods  found  in  the 

possession  of  a  person  accused  of  burglary,  made  some  time  after  the 
date  of  the  commission  of  tlie  alleged  offense  and  not  in  the  presence 
of  the  person  accused,  are  hearsay  only,  and  should  not  be  admitted. 

2.  Where  a  person  accused  of  an  offense  makes  a  confession  in  which  he 

implicates  another  in  its  commission,  declarations  of  the  latter,  deny- 
ing complicity,  made  to  the  officers  when  mformed  of  the  confession, 
are  hearsay  only,  and  upon  the  trial  of  the  former  should  not  be  admitted 
against  him. 
8.  No  presumption  of  guilt  arises  from  the  mere  possession  by  the  accused 


',k  1 

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w\ 

™?i 

Wjgx, 

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B 

^Bir " 

-ttl 

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hi 

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Sw^  ^' 

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A  Q 

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im 

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m  t 


';     lis 


136 


AMERICAN  CRIMINAL  REPORTS. 


of  goods  alleged  to  have  been  stolen  from  the  premises  at  the  time  of 
the  commission  of  the  burglary,  unless  the  goods  were  shown  to  have 
been  in  fact  stolen  therefrom,  and  the  accused  is  found  recently  there- 
after in  the  possession  of  them;  and  a  charge  of  the  court,  upon  this 
phase  of  the  case,  which  leaves  entirely  out  of  consideration  both  or 
eit>er  of  these  elements,  is  erroneous. 
4.  It  is  never  too  late  for  counsel  to  present  to  the  court  pertinent  written 
requests  to  charge,  until  the  jury  has  retired  for  consideration  of  the 
cause;  and  a  refusal  of  such  a  request  upon  the  ground  that  it  came  too 
late-  it  being  handed  to  the  judge  upon  the  conclusion  of  the  general 
charge,  but  before  the  jury  had  in  fact  retired— was  erroneous. 

Frank  Brooks  was  convicted  of  burglary  and  brings  error. 
Reversed. 

Error  from  Superior  Court,  Wilkes  County;  Seaborn  Eeese, 
Judge. 

Collei/  (&  Sims  and  F.  W.  Gilbert,  for  plaintiff  in  error. 
W.  M.  Howard,  Solicitor  General,  for  the  State. 

Atkinson,  J.  1.  The  defendant  was  indicted  for  the 
offense  of  burglary.  On  the  trial  of  the  case  the  State  offered 
to  prove  by  one  of  its  witnesses,  that  he  had  taken  some  of  the 
goods  found  in  the  possession  of  the  defendant  and  carried 
them  to  a  storekeeper  whose  store  had  been  burglarized,  and 
that  upon  showing  them  to  the  storekeeper,  he  exclaimed  that 
they  were  his  goods.  To  the  admission  of  these  declarations, 
the  defendant  objected  upon  the  ground  chat  they  were  hear- 
say only,  and  were  therefore  not  admissible.  This  objection 
was  overruled  by  the  court,  and  the  testimony  admitted.  We 
think  that  the  objection  to  the  testimony  was  well  taken.  As 
tO  whether  or  not  the  property  alleged  to  have  been  stolen 
was  in  fact  the  property  of  the  storekeeper  and  had  ever  been 
in  fact  in  the  store  alleged  to  have  been  burglarized,  were 
material  questions  bearing  directly  upon  the  guilt  or  innocence 
of  the  accused.  These  declarations  made  by  the  storekeeper 
could  only  be  admitted  under  the  sanction  of  an  oath.  The 
facts  sought  to  be  established  by  the  declarations  were  not 
otherwise  proven  than  by  the  declarations  themselves;  so  that 
the  substantial  fact  which  went  to  the  consideration  of  the  jury 
was  wholly  unsupported  by  the  oath  of  any  one.  It  was 
strictly  hearsay  evidence,  and  therefore  should  have  been  ex- 
cluded. 


BROOKS  V.  STATE. 


137 


2.  So  likewise,  when  the  defendant,  being  accused,  makes 
a  confession  of  his  guilt,  implicating  another  person,  and  the 
other  person,  upon  the  confession  being  communicated  to  him, 
denies  his  complicity,  the  declarations  of  the  latter  are  hearsay 
only,  and  are  not  admissible  upon  the  trial  of  the  person  making 
the  confession.  The  confession  can  not  be  impeached  or  dis- 
credited by  unsworn  testimony,  and  it  was  therefore  error  to 
admit  the  declarations  of  the  alleged  accomplice. 

3.  Upon  the  trial  of  the  case,  the  court,  in  charging  the 
jury  touching  the  presumption  arising  from  the  recent  posses- 
sion of  stolen  goods,  instructed  tiiem  as  follows:  "If  you 
believe  from  the  evidence  that  this  defendant  broke  and 
entered  the  house  alleged  in  the  indictment,  at  the  time  alleged, 
he  is  guilty  of  the  offense  of  burglary.  To  illustrate  whether 
or  not  he  broke  and  entered,  you  may  Consider  all  the  evidence 
in  the  case;  and  one  of  the  evidences  you  may  consider  is, 
whether  or  not,  if  the  breaking  and  entering  of  the  store  has 
been  established  to  your  satisfaction,  then  in  determining 
whether  this  defendant  was  the  person  or  one  of  the  persons 
who  broke  and  entered,  you  may  consider  the  question  as  to 
whether  or  not  recently  after  the  breaking  and  entering,  he 
was  in  possession  of  goods  that  came  out  of  that  house.  And 
the  law  on  that  subject  is,  that  a  person  in  possession  of  prop- 
erty recently  after  the  commission  of  a  burglary,  having  been 
in  the  place  broken  and  entered,  that  you  may  infer  from  that 
fact  his  guilt  as  being  the  person  who  broke  and  entered." 

Exception  was  taken  to  this  charge,  as  incorrectly  stating  the 
rule  of  law  by  which  the  jury  were  to  be  guided  in  the  consid- 
eration of  that  class  of  testimony.  We  think  the  charge  was 
erroneous.  It  left  entirely  out  of  consideration  the  question  as 
to  whether  the  goods  were  stolen  from  the  house  at  the  time 
the  burglary  was  alleged  to  have  been  committed;  and  this  is 
one  of  the  important  elements  to  be  considered  in  determining 
the  weight  of  that  class  of  testimony.  Two  things  must  con- 
cur: it  must  be  shown  that  at  the  time  the  alleged  burglary 
was  committed  the  goods  were  taken  from  the  house  which 
was  broken,  and  it  must  be  shown  that  recently  thereafter  they 
were  found  in  the  possession  of  the  defendant.  It  is  not  the 
recent  possession  of  goods  that  might  have  been  in  the  store- 
house, but  the  recent  possession  of  goods  shown  to  have  been 
stolen  therefrom  at  the  time  the  burglary  was  committed, 


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138 


AMERICAN  CRIMINAL  REPORTS. 


which  affords  the  presumption  upon  which  the  guilt  of  the 
possessor  of  the  stolen  goods  may  be  inferred.  It  wiH  be  ob- 
served, upon  an  analysis  of  the  instruction  given  to  the  jury  in 
this  case,  that  they  might  have  found  the  defendant  guilty 
under  that  instruction,  upon  the  ground  that  he  was  found 
recently  in  the  possession  of  goods,  which,  however,  passed 
honestly  out  of  the  stock  of  the  proprietor  of  the  store  before 
the  burglary  was  in  fact  committed.  We  think,  therefore,  that 
the  charge  of  the  court,  leaving  out  of  consideration  the  ques- 
tion as  to  whether  the  goods  were  stolen  from  the  house  at  the 
time  the  alleged  burglary  was  committed,  was  error  prejudicial 
to  the  defendant. 

4.  The  question  of  practice  stated  in  the  last  headnote  re- 
quires no  further  elaboration.    Judgment  reversed. 

JiioTK.— Presenting  instructions  before  jury  retire».—I  entirely  agree  with 
tlie  court  that  it  is  never  too  late  for  counsel  to  present  to  the  trial  judge 
written  requests  to  charge  the  jury,  and  when  it  appears  that  the  matter 
presented,  wiis  of  vital  importance,  and  counsel,  through  negligence  or  inad- 
vertence had  overlooked  it  until  after  the  charge  was  read  to  the  jury,  then 
the  court,  in  justice  to  the  accused,  ought  to  permit  such  requests  to  be 
handed  up,  and,  if  proper,  to  read  them  to  the  jury.  There  is  no  reason  why 
counsel  should  not  be  compelled  by  rule  of  court  to  hand  up  all  requests  at 
a  certain  stage  of  the  trial,  so  as  to  give  the  judge  an  opportunity  to  care- 
fully read  and  study  them.  Counsel  sometimes  hands  up  to  the  judge  at 
the  very  last  hour  of  the  trial  a  number  of  confusing,  and  in  some  instances, 
contradictory  statements  of  the  law.  This  is  imposing  upon  the  trial  judge 
a  very  irksome  task. 

Misconduct  of  court  and  jury — View  of  premises— Discretion  of  court. — 
On  a  trial  for  burglary,  the  jury,  after  several  hours'  deliberation,  were 
brought  in,  toward  niglit,  and  announced  that  an  agreement  could  not  be 
had  without  a  view  of  the  premises.  The  court,  after  consulting  with 
counsel  apart  from  the  jury,  over  the  objection  of  the  prosecution,  decided 
to  allow  the  view,  on  defendant's  request,  and,  with  his  consent,  to  dismiss 
the  jury  for  the  night,  as  no  view  could  be  had  till  morning.  The  next 
morning  defendant's  counsel  privately  told  the  court  that  he  would  move 
to  dismiss  because  of  the  separation  of  the  jury,  at  which  the  court  became 
greatly  indignant,  and,  when  the  counsel  moved  for  the  dismissal,  denied 
the  motion,  and,  in  an  indignant  tone,  told  the  jury  that  they  had  been  dis- 
missed the  ni;;ht  before  on  the  motion  and  with  the  consent  of  defendant 
and  his  counsel,  but  "  defendant  now  prefers  to  move  that  all  proceedings 
in  this  case  be  dismissed."  The  jury  then  retired,  and,  without  a  view,  in 
five  minutes,  returned  a  verdict  of  guilty.  Held,  that  the  verdict  miist  be 
Bet  aside.    People  v,  Hawley,  HI  Cal.  78. 

It  is  within  the  discretion  of  the  court,  on  a  trial  for  burglary,  when  in- 
formed by  the  jury  that  they  can  not  agi-ee  on  a  verdict  without  a  view  of 
the  premises,  to  allow  such  view,  with  consent  of  defendant.     Id. 

Pen.  Code,  California,  requires  the  jury,  after  retiring  to  deliberate,  to  be 


BROOKS  V.  STATE. 


189 


kept  together.  Held,  that  the  requirement  is  mandatory,  and  a  separation, 
though  by  order  of  court,  with  consent  of  the  defendant,  is  a  violation  of 
the  requirement,  and  vitiates  a  conviction.    Id. 

A  motion  to  dischargu  defendant  in  a  criminal  case  for  separation  of  the 
jury,  had  on  his  motion  and  with  his  consent,  is  properly  denied.    Id. 

Instructions. — Where  the  court  is  requested  to  insti-uct  that  the  jury 
should  receive  the  testimony  of  an  accomplice  with  great  caution,  and 
might  disbelieve  it  altogether,  it  is  not  error  to  add  "  if  they  have  a  reason- 
able doubt  of  its  truth."    Broivn  v.  State,  72  Miss.  907. 

/Same.— The  refusal  to  give  a  proper  instruction  is  not  reversible  error 
where  the  law  has  already  been  covered  by  another  instruction.  Schaeffer 
V.  State,  61  Ark.  241. 

Same— Intent  to  commit  petit  larceny. — On  a  trial  for  entering  a  store- 
house at  night  with  the  intent  to  feloniously  and  burglariously  steal  and 
carry  away  goods  to  the  value  of  $15,  the  refusal  to  instruct  that,  if  de- 
fendant entered  prosecutor's  house  with  the  intent  to  commit  petit  larceny 
only,  he  would  not  be  guilty  as  charged,  was  error.    Id. 

Capacity  of  defendant  to  commit  crime. — Capacity  to  commit  crime  is 
a  question  to  be  determined  by  the  jury  from  the  age,  appearance  and  con- 
duct of  the  accused,  both  at  the  time  of  the  commission  of  the  offense  and 
at  the  time  of  the  trial.    State  v.  Williams,  40  W.  Va.  268. 

Same. — Where  the  defense  is  that  accused  was  Laboring  under  such  a 
defect  of  mind  as  not  to  know  the  nature  of  the  act  with  which  he  was 
charged,  the  court  should  have  permitted  him  to  show  by  his  mother  that 
she  had  another  son,  who  was  all  of  his  life  an  imbecile.  Schaeffer  v.  State, 
61  Ark.  241. 

Same. — Testimony  by  witnesses  that  they  had  known  defendant  for 
many  years,  and  that  they  did  not  think  that  he  was  capable  of  dis- 
tinguishing between  right  and  wrong  to  such  an  extent  as  to  be  able  to 
know  that  it  was  wrong  to  commit  burglary,  is  not  a  sufficient  foundation 
to  render  admissible  their  opinions  as  to  whether  "  he  would  have  sufficient 
mental  power  to  keep  him  from  committing  a  crime,"  if  he  knew  that  it 
was  wrong.    Livingston  v.  State,  105  Ala.  127. 

Witness — Impeachment  of. — That  the  State  introduces  evidence  tending  to 
show  a  different  state  of  facts  from  that  testified  to  by  a  witness  for 
defendant  is  not  an  impeachment  of  defendant's  witness  so  as  to  entitle 
defendant  to  introduce  evidence  to  sustain  such  witness.  State  v.  Nelson, 
13  Wash.  523. 

Same — As  to  value  of  diamonds. — On  a  trial  for  burglary,  a  witness  for 
defendant  who  was  not  an  expert  in  diamonds,  offered  to  show  the  jury 
diamonds  very  similar  to  those  which  the  state's  witnesses  had  identified 
as  the  stolen  property.  Held,  that  the  court  properly  refused  to  have  the 
stones  go  to  the  jury,  since  to  discredit  the  state's  witnesses,  defendant 
should  have  presented  the  stones  to  them  when  on  the  stand,  in  order  to 
test  their  power  to  distinguish  between  the  stones  presented  by  the  State 
and  those  offered  by  defendant.    State  v.  Ellwood,  18  R.  I.  234. 

Footprints. — In  a  trial  for  burglary,  it  was  error  to  allow  witness  to 
testify  that  tracks  found  near  the  scene  of  the  crime  corresponded,  in  his 
opinion,  with  the  tracks  of  defendant.    Livingston  v.  State,  105  Ala.  127. 

Piesumption  arising  from  possession  of  property  recently  stolen. — In 
Keating  v.  People,  160  111.  480,  the  following  instruction  was  given  : 


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AMERICAN  CRIMINAL  REPORTS. 


'•  The  possession  of  stolen  property  soon  after  the  commission  of  a  theft 
is  prima  facie  evidence  cf  the  guilt  of  the  person  in  whose  possession  it  is 
found,  and  is  sufficient  to  warrant  a  conviction,  unless  the  other  evidence 
in  the  case  or  the  surrounding  circumstances  are  such  as  to  raise  a  reason- 
able doubt  of  such  guilt." 

Commenting  thereon,  the  court  say :  "  As  a  statement  of  the  law.  the 
proposition  contained  in  the  instruction  is  sustained  by  many  authorities, 
among  which  are  the  following :  Smith  v.  People,  103  III.  83;  Unger  v. 
State,  42  Miss.  642;  Foster  v.  State,  52  Id.  695;  Tucker  v.  State,  57  Ga.  503; 
Brown  v.  State,  59  Id.  456;  State  v.  Turner,  65  N.  C.  593;  Knickerbocker  v. 
People,  43  N.  Y.  177;  Commonwealth  v.  Randall,  119  Mass.  107.  It  is  urged, 
however,  that  the  instruction  assumes  that  there  was  stolen  property.  It  is 
not  denied  that  paper  money  or  bills,  to  the  amount  of  $200,  were  found 
secreted  upon  the  person  of  the  plaintiflF  in  error,  but  it  said  that  this  money 
is  not  conceded  to  have  been  stolen.  We  think  that  the  question  whether 
or  not  the  property  was  stolen,  was  fairly  left  to  the  jury  when  all  the 
instructions  are  considered  together  as  one  charge." 

Same. — In  State  v.  Conway,  56  Kas.  682,  the  defendant  requested  the  court 
to  instruct  the  jury  that  the  possession  of  stolen  jjroperty  shortly  after  the 
burglary  was  not  e.'idence  of  the  commission  of  burglary.  This  was 
refused,  and  the  court  gave  the  following  instruction:  "  The  possession  of 
stolen  property,  recently  after  it  is  stolen,  is  prima  facie  evidence  of  guilt, 
and  tJirows  upon  the  possessor  the  burden  of  explaii;ing  such  possession." 
The  possession  of  stolen  property  may,  (says  Martin,  C.  J.,)  under  certain 
circumstances,  be  evidence  tending  to  show  the  commission  of  a  recent 
burglary;  as  if  goods  are  placed  in  a  building  well  secured  in  the  night 
time,  and  early  the  next  morning  they  are  found  in  the  possession  of  one 
who  has  no  right  to  them,  this  recent  possession  might  tend  to  show  that 
the  possessor  had  not  only  stolen  the  goods,  but  had  broken  into  the  build- 
ing to  obtain  them.  The  instruction  requested  was  therefore  erroneous. 
It  would  generally  be  error  in  the  opposite  direction,  however,  to  declare 
that  the  recent  possession  of  goods  stolen  out  of  a  building  is  evidence  of 
burglarly  as  well  as  larceny,  and  the  instruction  of  the  court  should  have 
been  modified  so  as  to  state  that  the  possession  of  stolen  property  recently 
after  the  theft  is  prima  facie  evidence  of  guilt  of  larceny.  But  the  court 
very  fully  and  fairly  instructed  the  jury  as  to  the  law  of  burglarly  and  lar- 
ceny, and  the  instruction  as  to  the  possession  of  stolen  property  was  evi- 
dently intended  by  the  court,  and  understood  by  the  jury,  to  have  reference 
only  to  the  offense  of  larceny;  and  the  failure  to  modify  the  instruction  as 
above  indicated  cannot  be  regarded  as  prejudicial  error. 


State  v.  Rogers. 

(56  Kas.  362.) 

Burolart:    Continuance— Evidence  on  former  trial— Instructions— Dis- 
agreement of  jury— Adjournment  of  court— Presumptions  on  appeal. 

1.  In  a  prosecution  for  a  felony,  the  defendant  applied  for  a  continuance 
on  the  giound  of  his  sickness  and  disability.    A  committee  of  physi- 


STATE  V.  ROGERS. 


141 


cians  was  appointed  by  the  court  to  visit  the  defenrlant,  and  report, 
which  they  did.  Afterward  another  committee  of  pliysicians  was  ap- 
pointed to  treat  the  defendant  until  ready  for  trial,  when,  the  case  being 
again  called,  another  application  for  continuance  was  made,  which, 
upon  hearing  evidence,  the  court  overruled,  finding  that  the  defendant 
was  able  to  be  present.  Held,  that  there  was  no  abuse  of  discretion 
in  overruling  the  application  for  a  continuance. 

8.  On  a  second  trial  of  the  defendant  upon  an  information  for  a  felony, 
the  State  offered  to  read,  from  a  writing  purporting  to  be  a  bill  of  ex- 
ceptions taken  on  the  first  trial,  the  testimony  given  by  the  defendant 
in  his  own  behalf.  It  was  admitted  that  the  document  was  such  bill  of 
exceptions,  and  it  is  stated  in  the  record  that  counsel  "  reads  to  the 
jury  the  following  testimony  of  G.  W.  Rogers,  which  is  in  words  and 
figures  as  follows,"  to  wit:  Held,  that  the  evidence  was  sufficiently 
identified,  and  was  admissible. 

8.  Tlie  practice  of  calling  in  a  jury,  and  lecturing  them  upon  the  desira- 
bility of  an  agreement,  is  not  to  be  commended;  but  the  oral  remarks 
of  the  court  to  the  jury  in  this  case  were  not  so  objectionable  as  to  war- 
rant a  reversal  on  that  ground. 

4.  The  district  court  may  adjourn  to  a  time  beyond  the  commencement 

of  the  regular  term  in  another  county  of  the  same  district;  and  this,  in 
the  absence  of  any  showing  that  the  court  was  held  in  both  counties  at 
the  same  time,  does  not  invalidate  the  proceedings  at  such  adjourned 
term. 

5.  The  presumption,  in  the  absence  of  anything  in  the  record,  is  that  the 

court  discharged  its  duty  in  admonishing  the  jury  as  required  by  the 
statute,  upon  each  separation. 


.'^    ■'U 


'ft 


Appeal  from  District  Court,  Eeno  County;  F.  L.  Martin, 
Judge. 

George  "W.  Rogers  was  convicted  of  burglary,  and  appeals. 
Aifirmed. 

The  defendant  was  convicted  in  the  district  court  of  Har- 
vey county  of  burglary  in  the  second  degree,  the  crime  being 
committed  on  the  night  of  March  23,  1893,  by  breaking  into 
a  building  occupied  as  the  court-house  of  said  county,  with 
intent  to  set  fire  to,  burn  and  destroy  the  books  and  records 
of  said  county.  After  sentence,  he  apjjealed  to  this  court, 
where  the  sentence  was  reversed,  because  of  the  admission  of 
incompetent  testimony.  The  report  of  the  case  contains  a 
summary  of  the  evidence.  54  Kan.  683-698.  A  change  of 
venue  was  afterward  granted,  and  the  case  was  sent  to  Reno 
county  for  trial.  It  was  called  for  trial  May  13,  1895.  The 
defendanti  applied  for  a  continuance  on  the  ground  of  the 
absence  of  witnesses,  and  the  court  held  that  the  showing  was 
sufficient;  thereupon  the  State  consented  to  the  reading  of 


*i 


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*';•! 
.^1^ 


142 


AMERICAN  'miMINAL  REPORTS. 


1 1    ,       1 J 


the  evidence  contained  in  the  application  as  the  depositions 
of  the  absent  witnesses,  and  a  jury  was  impaneled  and  sworn 
to  try  the  cause,  a  plea  of  not  guilty  having  been  entered. 
No  further  proceedings  were  had  until  the  next  day,  when, 
the  case  being  called,  it  was  announced  that  the  defendant 
was  sick,  and  unable  to  attend  the  trial.  His  home  was  at 
Newton,  where  he  went  with  Willard  Kline,  one  of  his  attor- 
neys, on  the  evening  of  May  13th.  The  State  requested  the 
court  to  appoint  three  physicians  to  go  to  Newton,  and  ex- 
amine the  defendant,  and  report  his  condition;  and  thereupon 
the  court  appointed  Drs.  Klippel  and  Colladay,  of  Hutchinson, 
and  Dr.  Boyd,  of  Newton,  to  perform  that  service,  and  the 
court  adjourned  until  May  15th.  On  that  day,  the  physicians 
and  Willard  Kline  were  called  and  examined  as  witnesses 
respecting  the  physical  and  mental  condition  of  the  defendant, 
and  the  court  found  therefrom  that  the  defendant  was  able 
to  be  present  in  court,  and  that  his  physical  condition  was  not 
such  as  to  prevent  or  excuse  him  from  attending,  and  the 
sheriff  was  ordered  to  bring  him  into  court  on  May  lOth,  at 
nine  o'clock  a.  m.  When  that  time  arrived,  counsel  for  defend- 
ant again  applied  for  a  continuance  on  the  showing  already 
made  and  the  aifidavit  of  Stella  E.  Rogers,  wife  of  the  defend- 
ant, which  was  read.  Thereupon  the  sheriff  was  ordered  to 
take  charge  of  the  defendant,  with  such  deputies  as  he  might 
choose,  and  Drs.  Sidlinger,  Shearer  and  Wilson  Avere  appointed 
to  treat  him  until  ready  for  trial,  and  to  see  that  nothing  was 
given  him  except  under  their  direction.  The  court  adjourned 
to  May  17th,  and  then  again  to  May  20th,  which  was  the  last 
day  of  the  regular  term,  as  the  law  fixed  May  21st  as  the 
beginning  of  the  regular  term  in  Harvey  county,  in  the  same 
judicial  district.  On  May  20th,  the  court  again  adjourned  to 
May  22d,  when  the  case  was  called,  but  it  was  objected  on 
behalf  of  the  defendant  that  the  term  had  expired  by  law,  and 
another  term  had  commenced  in  Harve}'  county;  but  the  objec- 
tion was  overruled,  for  the  reason  stated  orally  by  the  judge, 
and  not  otherwise  appearing,  that  he  opened  the  court  in 
Harvey  county  on  May  2l8t,  and  adjourned  the  same  until 
June  3, 189.5. 

The  defendant  and  his  attorneys  again  applied  fpr  a  con- 
tinuance on  the  ground  of  the  inability  of  the  defendant  to  be 
present  and  advise  with  his  counsel  and  direct  the  management 


(■-  '»ii 


STATE  V.  ROGERS. 


143 


of  tho  onse,  and  in  support  thereof  offered  another  affidavit  of 
said  Stella  E.  Rogers,  and  the  State  presented  the  affidavits  of 
Drs.  Wilson,  Klippel,  CoUada}'  and  Sidlinger  in  opposition 
thereto;  and  thereupon  tho  court  found  that  the  defendant  was 
able  to  be  placed  on  trial,  and  was  in  a  fit  and  suitable  condi- 
tion physically  to  be  present,  and  the  application  for  a  contin- 
uance was  overruled,  and  the  case  proceeded  to  trial.  It 
ajjpoars  that  the  defendant  occupied  a  cot  during  the  trial,  and 
spoke  to  his  counsel  only  in  whispers,  and  that,  while  testifying 
as  a  witness,  his  answers  were  repeated  to  tho  jury  by  his 
counsel;  but  it  was  claimed  by  the  State,  and  the  evidence 
hoard  on  the  application  for  a  continuance  strongly  tended 
to  show,  that  the  sickness  of  the  defendant  was  feigned,  and 
not  real,  and  that  his  disability  was  simulated,  although  he 
was  really  weak  and  not  in  good  health.  The  trial  proceeded 
until  May  25th,  when  the  court  instructed  the  jury,  and  the 
case  was  then  argued  by  counsel  and  submitted.  On  May  28th, 
after  the  jury  had  deliberated  twenty-four  hours,  they  were 
brought  into  court,  and  the  judge  made  remarks  orally,  which 
were  afterward  reduced  to  writing  by  him,  as  follows : 

"  Gentlemen  of  the  jury,  the  duties  of  a  juror  in  ievery  case 
are  very  arduous,  and  you  have  been  out  in  this  case  for  twenty- 
four  hours,  and  I  suppose  that  I  need  not  remind  you  that  it 
is  a  matter  of  great  public  importance  that  this  case  be  de- 
cided. You,  of  course,  know  yourselves  that  it  has  been  a 
great  expense  to  the  public  to  try  this  case;  and  if  you  should 
disagree,  and  another  trial  should  be  had,  all  the  expense  of 
this  trial  being  lost,  and  another  trial  being  had  at  the  same 
expense,  after  the  trial  was  through,  and  the  jury  impaneled 
to  try  tho  case  again  would  probably  have  no  more  evidence 
thiin  has  been  presented  to  this  jury,  and  there  is  no  reason 
why  this  jury  should  not  decide  this  case  with  the  same  fair- 
ness and  correctness  that  any  other  jury  should  decide  it.  I 
feel,  therefore,  that  I  could  not  discharge  you  as  jurors  in  this 
case  without  requiring  you  to  a  much  greater  effort  to  agree 
upon  your  part  upon  a  verdict  than  you  have  made  up  to  date. 
I  suppose,  as  you  stated  this  morning,  there  are  no  questions 
of  law  about  which  the  jury  disagree.  If  there  are  any  such 
questions,  you  can  make  them  known  to  the  court.  The  court 
grants  the  defendant  an  exception  to  all  the  remarks  made  by 
the  court  to  the  jury.    Of  course,  gentlemen  of  the  jury,  as 


Hi 


IV 


r, 


lU 


AMERICAN  CRIMINAL  REPORTS. 


I  t;l 


stated  in  the  written  instructions,  you  are  the  sole  and  ex- 
clusive jud«jes  of  all  the  facts  in  the  case  and  the  credibility 
of  the  witnesses,  and  I  have  no  desire  now,  in  anything  I  have 
said  to  invade  the  province  of  the  jury." 

On  May  29th,  the  jury  returned  a  verdict  of  guilty  of 
burglary  in  the  second  degree,  and  on  May  31st  the  defendant 
filed  a  motion  for  a  new  trial,  which  was  heard  and  overruled 
on  June  1st,  and  the  defendant  was  sentenced  to  imprisonment 
at  hard  labor  in  the  penitentiary  for  the  term  of  live  years, 
and  from  this  judgment  he  appeals. 


! 


■m 


''II  m 


ij       '  t 


Wall  cfe  Brooks  and  Willard  Kline,  for  appellant. 
F.  B.  Dawes,  Attorney-General,  61  E.  Braninej  County 
Attorney,  and  Bowman  tfc  Bucher,  of  counsel. 

The  opinion  of  the  court  was  delivered  by  Martin,  C.  J. 

1.  It  is  strongly  urged  by  counsel  for  defendant  that  the 
court  erred  in  refusing  to  grant  a  continuance  on  account  of  his 
sickness  and  disability.  The  embarrassing  and  delicate  duty 
of  passing  upon  the  defendant's  physical  and  mental  condition 
was  devolved  upon  the  court.  The  proceedings  were  very 
unusual,  but  we  can  not  say  that  they  were  not  justified  by 
the  situation,  the  good  faith  of  the  application  for  a  continu- 
ance being  challenged  by  the  state.  In  State  v.  lihea,  25  Kan. 
576,  579,  it  was  declared  that 

"  Continuances  are  largely  within  the  discretion  of  the  trial 
court;  and,  before  error  can  be  afiirmed,  it  must  be  shown  that 
such  discretion  has  been  abused.  It  is  not  enough  that  con- 
ditions and  circumstances  are  sho», n  which  would  justify  a 
postponement;  there  must  bo  those  which  compel  such  post- 
ponement. Any  uncertainty  or  doubt  in  this  respect  must  be 
resolved  in  favor  of  the  ruling  below.  Abuse  of  discretion  is 
never  presumed;  it  must  be  proved." 

See,  also,  Cushenleri'y  v.  McMurray,  27  Kan.  32S;  Krapp 
V.  Ilauer,  38  Kan.  430,  and  Harlow  v.  Warren,  38  Kan.  480, 
where  applications  were  made  for  continuances  on  the  ground 
of  the  sickness  of  a  party.  In  Ilottemtein  v.  Conrad,  9  Kan. 
435,  440, 441,  it  was  held  that  whatever  fact  a  court  may  in- 
quire into  on  a  motion  it  can  also  determine,  and  its  deter- 
mination establishes  the  fact  for  all  the  purposes  of  the  motion. 
Upon  the  record,  we  can  not  say  that  the  court  erred  in  its 


STATE  V.  ROGERS. 


ur, 


conclusion,  nor  that  it  abused  its  discretion  in  refusing  to 
grant  a  continuance. 

'J.  It  is  insisted  that  the  court  erred  in  admitting  testimony 
over  the  defendant's  objections.  The  prosecution  offered  to 
introduce  in  evidence  some  statements  made  by  the  defendant 
on  tlio  first  trial  by  selecting  and  reading  portions  only  of 
what  was  claimed  to  be  his  testimony,  as  shown  on  certain 
designated  pages  of  the  bill  of  exceptions.  To  this  his  counsel 
objected  that  a  part  of  such  former  testimony  could  not  be 
introduced  against  him,  but  that  it  must  all  go  to  the  jury, 
and  the  court  took  this  view  of  the  case;  and  counsel  for  the 
State  then  proceeded,  under  protest,  to  read  it  all  from  the  bill 
of  exceptions  transcribed  from  the  stenographer's  notes.  The 
d«fondant  then  interposed  the  general  objection  that  the  testi- 
mony was  incompetent,  irrelevant  and  immaterial.  The  attor- 
ney tor  the  State  thereupon  inquired  of  counsel  for  the  defend- 
ant if  he  would  admit  that  he  was  reading  from  the  bill  of 
exceptions  filed  by  the  defendant  in  the  former  trial,  and 
counsel  responded  in  the  affirmative,  but  said  that  he  still 
objected  to  the  evidence  as  incompetent,  irrelevant,  and  imma- 
terial, which  objection  was  overruled,  and  it  is  then  stated 
in  the  record  that  counsel  "  reads  to  the  jury  the  following 
testimony  of  G.  W.  Rogers,  which  is  in  words  and  figures  as 
follows,  to  wit."  And  apparently  all  the  testimony  of  the  de. 
it  iidant  on  the  former  trial  was  here  read  to  the  jury.  Doubt- 
less, the  testimony  of  a  defendant  in  a  criminal  case  in  his  own 
li  ilf  on  a  former  trial  or  examination  may  be  offered  in  evi- 
dence against  him,  and  the  State  is  not  required  to  read  the 
whole  of  his  testimony;  but  if  that  which  is  offered  relates  to 
any  particular  subject  or  fact,  then  all  bearing  on  that  subject 
or  fact  shouh  l)e  placed  before  the  jury.  {State  v.  Sorter,  62 
Kan.  531,  540.)  liut  the  defendant  had  the  benefit  of  the 
objection  against  the  reading  of  a  part  only.  The  general 
objection  made,  however,  by  the  defendant,  was  not  obviated 
bv  that  circi  \istance.  The  regular  method  of  introduction  of 
such  evidence  is  to  call  the  stenographer  who  transcribed  the 
testimony  from  his  notes,  or  some  other  person  who  heard  the 
witness  testify  and  knows  that  the  bill  of  exceptions  contains 
a  correct  statement  of  what  he  said  from  the  witness  stand, 
as  in  Solomon  lild.  Co.  v.  Jones,  34  Kan.  443, 460.  But  where 
it  is  admitted,  as  in  this  case,  that  the  document  produced  is 
10 


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■■;  i . 


;.'  n 


146 


AMERICAN  CRIMINAL  REPORTa 


the  bill  of  exceptions  filed  by  the  defendant  in  the  former  trial, 
and  the  record  shows  that  counsel  for  the  State  reads  to  the 
jury  the  testimony  of  the  defendant,  any  further  identification 
of  the  testimony  is  unnecessary. 

It  was  the  theory  of  the  prosecution  that  the  crime  was  con- 
ceived by  the  defendant,  and  that  he  induced  George  H.  Shir- 
ley to  manage  the  destruction  of  the  records,  and  that  Shirley 
employed  Harris,  English  and  Riffle,  three  professional  bur- 
glars, to  do  the  work.  G.  O.  Smith  was  working  in  Matthews' 
restaurant,  which  kept  open  day  and  night,  and  which  Shirley 
often  frequented  in  the  night  season;  and  Smith  was  called  as 
a  witness  to  testify  to  Shirley's  conduct  at  the  restaurant 
early  in  the  morning  that  the  offense  was  committed.  The 
objection  made  to  this  testimony  is  that  the  crime  had  already 
been  committed,  and  that  evidence  of  Shirley's  conduct  there- 
after Avas  inadmissible  against  his  co-defendant,  who  was  being 
tried  separately;  but  the  record  shows  that  the  peculiar  con- 
duct of  Shirley,  testified  to  by  the  witness,  was  about  four 
o'clock  in  the  morning,  and  this  is  just  about  the  time  that  the 
professional  house  breakers  were  engaged  in  their  desperate 
business.  The  defendant  also  complains  of  the  admission  of 
the  testimony  of  Thomas  Carroll,  who  had  been  solicited  by 
Shirley  to  assist  him  in  destroying  the  records.  It  is  said  that 
there  was  no  proof  that  any  conspiracy  had  been  formed  at 
that  time  to  which  Rogers  was  a  party.  He  testified  that 
Shirley  said  he  would  see  his  partner,  and  it  is  claimed  that 
this  was  inadmissible  for  the  purpose  of  showing  that  a  con- 
spiracy then  existed.  It  is  true  that  such  testimony  would  not 
be  admissible  for  that  purpose,  but  evidence  was  given  on  the 
trial  tending  to  show  that  the  conspiracy  between  the  defend- 
ant and  Shirley  was  formed  before  that  time.  The  testimony 
of  the  witness,  H.  W.  Black,  as  to  a  conversation  with  Shirle}' 
at  Wichita,  wherein  Shirley  inquired  if  he  knew  where  he 
could  "get  a  man  to  do  some  dirty  work,"  is  complained  of, 
but  it  was  admissible  for  the  reasons  above  indicated.  And 
these  obj:  ?i\';\s  to  the  testimony  of  Smith,  Carroll  and  Black 
were  substantially  disposed  of  when  the  case  was  here  before. 

3.  The  next  complaint  respects  the  giving  and  refusal  of 
instructions.    No.  24,  as  given,  reads  as  follows : 

"  You  are  instructed  that  before  you  are  warranted  in  find- 
ing the  defendant  guilty,  each  of  you  must  be  able  to  truthfully 


STATE  V.  ROGERS. 


147 


and  conscientiously  say  that  his  guilt  has  been  established  by 
the  evidence  in  the  case  beyond  reasonable  doubt;  and  if,  after 
a  consideration  of  the  whole  case  and  consulting  with  your 
fellow  jurymen,  any  one  of  the  jurors  entertains  a  reasonable 
doubt  as  to  whether  defendant's  guilt  has  been  established,  you 
can  not  convict  the  defendant;  but  you  can  not  acquit  the  de- 
fendant unless  all  the  jurors  entertain  a  reasonable  doubt." 

The  last  clause  is  severely  criticised,  counsel  saying  that  this 
would  compel  a  person  charged  with  the  commission  of  an 
offense,  in  order  to  secure  an  acquittal,  to  establish  a  reason- 
able doubt  of  his  guilt  in  the  minds  of  each  juror;  and  they 
asked  an  instruction  to  the  effect  that  if  a  single  juror  enter- 
tained a  reasonable  doubt,  then  the  defendant  must  be  acquit- 
ted. That  the  instruction  asked  was  erroneous  is  settled  by 
the  case  of  State  v.  Witt,  Si  Kan.  488,  and  we  can  conceive  of 
no  valid  objection  to  the  instruction  as  given,  and  this  notwith- 
standing tho  case  of  Stitz  v.  State,  104  Ind.  359,  362.  In  that 
case  the  court  below  instructed  the  jury  that,  •*  while  each 
juror  must  be  satisfied  of  the  defendant's  guilt  beyond  a  rea- 
sonable doubt  to  authorize  a  conviction,  such  reasonable  doubt, 
unless  entertained  by  all  the  jurors,  does  not  warrant  an  ac- 
quittal." And  the  Indiana  Supreme  Court  concludes,  from  a 
process  of  reasoning  incomprehensible  to  us,  that  "  this  must 
liavo  induced  the  jurors  to  think  that,  unless  all  concurred  in 
entertaining  a  reasonable  doubt,  the  verdict  should  be  against 
the  defendant."  We  can  not  see  that  it  meant  anything  more 
than  that  the  verdict,  either  of  conviction  or  acquittal  in  a 
criminal  case,  must  be  the  result  of  the  concurrence  or  running 
together  of  the  minds  of  all  the  jurors.  If  the  minds  of  the 
jurors  do  not  so  concur,  there  must  be  a  disagreement.  But  it 
is  hardly  necessary  to  instruct  an  American  jury  touching 
their  right  to  disagree,  for  this  is  universally  understood. 
Some  of  the  other  instructions  given  are  criticised,  it  being 
said  that  the  court  assumed  the  guilt  of  Shirley,  which  was  a 
step  necessary  to  establish  the  guilt  of  the  defendant;  but  we 
do  not  think  that  the  language  of  the  court  is  subject  to  this 
construction.  And  there  was  no  errjr  in  the  instruction  that, 
in  determining  the  weight  and  credibility  of  the  evidence  of 
the  defendant,  they  should  consider  his  motives  and  his  testi- 
mony the  same  as  the  other  witnesses.  If  the  instruction  had 
singled  out  his  motives  alone,  perhaps  the  word  "  may,"  ought 


^ 


Wif 


■  f-a 


i  I 


11 


(?* 


148 


AMERICAN  CRIMINAL  REPORTS. 


to  have  been  used  rather  than  "  should;"  but  when  the  defend, 
ant  was  referred  to,  only  as  one  of  the  witnesses,  and  his  mo- 
tives were  spoken  of  in  the  same  connection,  we  can  not  say 
that  the  language  used  was  erroneous  or  prejudicial.  The 
defendant  asked  certain  instructions  to  the  effect  that,  if  the 
facts  and  circumstances  relied  upon  by  the  State  to  establish 
guilt  could  be  reasonably  explained  upon  the  theory  of  the 
guilt  of  some  person  other  than  the  defendant,  then  he  must 
be  acquitted.  This  would  have  been  error,  prejudicial  to  the 
State,  for  the  proof  of  the  guilt  of  Harris,  English,  Riffle  and 
Shirley  was  much  more  direct  and  positive  than  the  evidence 
of  the  guilt  of  the  defendant;  and  it  was  necessary  to  prove 
their  guilt  before  that  of  the  defendant  could  be  established. 
This  however,  would  constitute  no  good  reason  for  the  de- 
fendant's acquittal.  Another  instruction  asked  was  upon  the 
force  of  circumstantial  evidence,  and  embodied  the  proposition 
that,  in  order  to  authorize  a  conviction,  all  the  circumstances 
must  be  consistent  with  each  other.  Minor  circumstances  may 
be  in  evidence  which  are  inconsistent  with  each  other,  and  yet, 
if  the  jury  can  say  upon  the  evidence  that  all  the  circum- 
stances are  consistent  with  the  defendant's  guilt,  and  incon- 
sistent with  any  other  rational  conclusion,  a  jury  may  be 
warranted  in  returning  a  verdict  of  guilty.  There  was  no  mate- 
rial error  in  the  giving  or  refusing  of  instructions,  which  seem 
to  have  been  drawn  carefuU}-,  with  a  view  to  the  protection  of 
all  the  rights  of  the  defendant. 

4.  The  practice  of  calling  in  a  jury,  and  lecturing  them  upon 
the  desirability  of  an  agreement,  although  obtaining  to  a  con- 
siderable extent  in  this  State,  is  not  to  be  commended.  Jurors 
very  generally  understand  the  importance  of  agreement,  and 
the  inconvenience  and  expense  of  another  trial.  It  is  presum- 
able that,  in  their  arguments  pro  and  con  for  many  hours  to- 
gether, they  chide  each  other  sufficiently,  and  they  ought  not 
to  be  visited  with  a  scolding  by  the  court  because  differences 
of  opinion  still  remain.  In  this  case,  however,  the  oral  remark  s 
of  the  court  seem  to  have  had  no  immediate  or  early  effect,  for 
there  was  no  verdict  until  the  next  day;  and  upon  considering 
the  language  of  the  court,  Ave  can  not  see  enough  in  the  remarks 
to  induce  us  to  believe  Ihat  they  were  efficacious  in  proilucing  an 
agreement.  The  language  is  compared  with  that  used  in  State 
V.  Byhee,  17  Kan.  462, 464,  466,  but  there  is  little  resemblance; 


STATE  V.  ROGERS. 


149 


and  under  the  circumstances  of  this  case  we  would  not  feel 
warranted  in  ordering  a  reversal,  as  the  remarks  contain  noth- 
ing in  the  nature  of  instructions,  unless  at  the  close,  and  this 
was  at  most  but  a  harmless  repetition. 

5.  It  is  argued  that  the  conviction  was  erroneous  and  illegal, 
because  the  term  at  which  the  trial  commenced  ended  by  opera- 
tion of  law,  and  another  terra  commenced  in  Harvey  county,  on 
May  21, 1895.  In  was  held  in  lie  IfilUngton,  24  Kan.  214,  that 
courts  can  not  be  legally  held  at  the  same  time  in  two  coun- 
ties of  the  same  judicial  district.  But  the  district  court  of  one 
county  is  not  prohibited  from  adjourning  to  a  time  beyond  the 
regular  term  in  another  county  of  the  same  district.  {State  v. 
Montgomery^  8  Kan.  351,  35C.)  And  in  State  v.  Pahiier^  40 
Kan.  474, 478,  the  court  in  one  county  was  adjourned  to  a  time 
one  day  subsequent  to  the  commencement  of  the  term  in  an- 
other county  of  the  same  district,  which  latter  terra  was  on  the 
lirst  day  adjourned  to  a  time  beyond  the  adjourned  term  of  the 
former  county;  and  this  practice  was  held  proper.  This  case 
would  be  exactly  in  point  here  if  the  oral  statement  of  the  trial 
judge  should  be  taken  as  evidence,  but  this  is  objected  to.  We 
hold,  however,  that,  in  the  absence  of  any  showing  that  the 
court  was  held  in  Harvey  county  on  May  22d,  and  the  follow- 
ing days  of  the  trial  of  this  case,  the  defendant's  objection  to. 
the  regularity  of  the  term  can  not  be  sustained. 

6.  It  is  said  that  the  court  erred  in  failing  to  adraonish  the 
jury  on  the  adjournment  of  Saturday,  May  25th,  as  required 
by  statute.  The  record  does  not  affirmatively  show  whether 
tiie  admonition  was  given  or  not;  and  the  presumption,  in  the 
absence  of  anything  in  the  record,  is  that  the  court  discharged 
its  duty  in  admonishing  the  jury  before  they  were  allowed  to 
separate.  {Linton  v.  IIouhJi,  4  Kan.  535,  539;  State  v.  Palmer, 
Kiqn'a)  We  find  no  substantial  error  in  the  record  prejudicial 
to  the  defendant,  and  the  judgment  of  the  court  below  must 
be  affirmed.     All  the  justices  concurring. 

Note.— Br«ifc/n{;  premises  to  take  posseanion  of  property  under  claim  of 
ownership.— The  AefvnHc  in  a  criminal  case  charging  the  defendant  with 
breaking  and  entering  a  building  with  intent  to  steal  a  mule,  was  that  the 
breaking  and  entry  were  made  with  no  criminal  intent,  but  in  good  faitli  to 
take  possession  of  the  mule,  believing  him  to  be  the  property  of  the  de- 
fenilant.  The  State  read  in  rebuttal  the  record  of  a  proceeding  in  replevin 
for  the  mule  in  a  justice  of  the  peace  court,  begun  by  defendant  against 
the  person  in  possession  of  the  animal.    From  this  record  it  appeared  tliat 


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150 


AMERICAN  CRIMINAL  REPORTS. 


the  case  was  dismissed  for  want  of  prosecution.  The  defendant,  in  his 
statement  before  the  jury,  had  given  a  parol  statement  about  the  same  pro- 
ceeding. The  record  was  objected  to  as  being  irrelevant  and  immaterial. 
Held,  tliat  the  objection  was  properly  overruled;  that  evidence  tending  to 
prove  a  voluntary  abandonment  by  the  defendant  of  his  suit  for  possession 
of  the  mule  tended  to  contradict  his  statement  of  good  faith  and  honest  be- 
lief that  it  was  his  property.    Charles  v.  State,  36  Fla.  691. 

Sawie.— Where  a  question  is  involved  in  a  criminal  case  as  to  the  owner- 
ship of  property,  which  the  defendant  is  charged  with  an  intent  to  steal, 
evidence  tending  to  show  that  a  person  alleged  in  the  indictment  to  be  the 
owner  of  the  property,  and  admitted  by  the  defendant  to  have  formerly 
been  the  owner  of  the  same,  was  induced  to  part  with  the  possession  by 
fraudulent  misrepresentations,  and  that  he  would  not  have  parted  with  the 
same  except  for  sucli  misrepresentations,  is  admissible,  as  tending  to  show 
that  the  mule  still  remained  the  property  of  the  former  owner,  unless  the 
defendant  were  a  bona  fide  purchaser  for  value,  without  notice  of  the 
fraud.    Id. 

Same.— The  court  charged  the  jury,  among  other  matters,  that  it  was  a 
question  for  them  to  decide  whether  "  the  defendant  in  good  faith,  honestly 
believed  the  mule  to  be  his  property,  as  a  reasonable  and  prudent  man." 
This  charge  was  erroneous.  The  court  should  not  have  limited  the  de- 
fendant to  such  good  faith  and  honest  belief  as  would  be  entertained  by  a 
reasonable  and  prudent  man.  The  law  deals  only  with  the  intention,  and 
a  man  is  not  to  be  punished  when  he  has  no  guilty  intention,  and  acts  in 
good  faith  and  with  an  honest  belief,  although  he  may  not  have  acted  as  a 
reasonable  and  prudent  man  in  having  such  faith  and  belief.    Id. 

The  decision  of  the  Supreme  Court  of  Florida,  in  respect  to  the  law  stated 
in  the  last  paragraph,  is  sustained  by  reason  and  supjwrted  by  abundant 
authority.  But  the  decision  in  the  Kansas  case  is  supported  neither  by 
reason  nor  authority.— Ed. 


Scott  v.  State. 

(91  Wis.  552.) 

Burglars'  Toots:    Posxession  of— Information— Sufflcieney— Prosecuting 
Attorney — Prejudicial  Remark.^. 

1.  Under  laws  of  Wisconsin  making  the  possession  of  burglars*  tools, 
adapted  to  break  open  places  of  deposit  in  order  to  take  therefrom  any 
money  or  property,  with  intent  to  use  them  for  such  purpose,  an 
offense,  an  information  alleging  possession  with  the  intent  to  break 
open  places  of  deposit  in  general,  and  take  property  therefrom,  without 
specifying  any  particular  place  or  property,  is  sulHcient. 

a.  Where  there  is  evidence  by  the  profecution  that,  on  arrest  of  defendant 
while  stealing  a  ride  on  an  expre^  train,  the  tools  were  found  concealed 
in  his  pants  and  shoes;  that  tha  tools  form  a  complete  burglars'  kit, 
except  the  brace,  which  is  always  obtained  at  the  place  of  operation; 
and  by  defendant  that  he  found  the  tools— a  refusal  to  take  the  case 
from  the  jury  is  proper. 


SCOTT  V.  STATE. 


151 


8,  Where  the  only  evidence  is  that  defendant,  when  arrested,  had  all  the 
tools  usually  carried  by  burglars,  concealed  on  his  person,  and  no  evi- 
dence that  he  has  ever  been  convicted  of  theft,  an  assertion  in  argument 
by  the  prosecuting  attorney  that  defendant  is  a  thief,  and  a  ruling  by 
the  court  that  it  is  warranted  by  the  evidence,  is  ground  for  reversal. 

Error  to  review  a  judgment  of  the  municipal  court  of  Mil- 
waukee county;  Emil  Wallber,  Judge.    Keversed. 

Patrick  Scott  was  convicted  of  having  burglars'  tools  in 
his  possession,  with  intent  to  use  them,  and  brings  error. 
Keversed. 

This  was  an  information  in  the  municipal  court  of  the  county" 
of  Milwaukee,  charging  that  on  the  fourteenth  day  of  Decem- 
ber, 1894,  at  the  county  of  Milwaukee,  the  plaintiff  in  error, 
Patrick  Scott,  unlawf uU}',  feloniously,  and  knowingly  did  have 
in  his  possession  certain  machines,  tools  and  implements — that 
is  to  say,  steel  drills,  skeleton  keys,  and  other  tools  and  im- 
plements adapted  and  designed  for  cutting  through,  forcing, 
or  breaking  open  rooms,  buildings,  vaults,  safes  or  other  depos- 
itory there  situate,  in  order  then  and  there  unlawfully  and 
feloniously  to  steal,  take  and  carry  away  therefrom  such 
money  and  other  property  capable  of  being  stolen  as  might 
be  found  therein;  he  (the  said  Patrick  Scott),  at  the  time  he 
bad  said  machines,  tools  and  implements  in  his  possession  as 
aforesaid,  well  knowing  the  same  to  be  adapted  and  designed 
for  the  purposes  aforesaid,  and  with  the  intent  then  and  there, 
unlawfully  and  feloniously,  to  use  or  employ  the  same  for  the 
purposes  aforesaid.  The  defendant's  counsel  moved  to  quash 
the  information,  on  the  ground,  among  others,  that  it  was  in- 
definite; that,  in  order  to  make  the  averment  of  intent  good, 
it  was  necessary  to  charge  that  the  defendant  intended  feloni- 
ously to  steal,  take  and  carry  away  from  the  owner  thereof, 
money  or  other  property  found  in  such  building,  room,  etc., 
but  the  motion  was  denied. 

After  the  plea  of  not  guilty,  it  appeared  at  the  trial  that 
the  defendant,  with  two  others,  who  were  with  him,  had  re- 
cently been  arrested  at  the  railroad  station  in  Milwaukee,  and 
had  been  taken  from  the  front  end  of  an  express  train  from 
Chicago,  upon  which  they  had  clandestinely  ridden  from  that 
city.  Upon  searching  the  defendant  the  officers  found  down 
his  pants  legs,  and  sticking  down  in  his  shoes,  two  small  drills, 
two  large  drills,  three  skeleton  keys,  and  other  implements 


it^-i'- 


'fiA''  '.11 


MM 


m 


152 


AMERICAN  CRIMINAL  REPORTS. 


produced  in  evidence.  Testimony  was  given  to  the  effect  tliat 
for  any  complete  burglars'  outfit,  as  for  a  man  that  woulil 
blow  safes,  drills,  skeleton  keys,  hooks,  etc.,  avouUI  be  sufficient, 
the  only  things  lacking  would  be  a  bit  and  brace,  not  usually 
carried,  being  too  heavy,  and  usually  procured  at  the  place  of 
operation,  and  that  the  said  tools  were  such  as  were  used  in 
opening  doors,  drilling  locks  and  for  safe  work.  The  parties 
all  claimed  to  be  bridge  builders,  and  that  they  came  to  Mil- 
waukee to  get  work.  The  two  others  arrested  with  the  defend- 
ant were  discharged.  The  defendant  claimed  that  he  found 
the  tools,  etc.,  near  Chicago,  at  Lamont,  while  walking  along 
the  road;  that  they  were  scattered  along  the  roadside;  and 
that  he  picked  them  up,  and  had  carried  them  ever  since.  He 
admitted  that  they  were  not  such  tools  as  were  used  by  bridge 
builders. 

After  other  evidence  had  been  produced,  the  State  rested, 
and  the  defendant's  counsel  moved  that  he  be  discharged  on 
the  ground  that  the  State  had  failed  to  prove  the  offense 
charged.  The  trial  judge  denied  the  motion,  saying,  "  I  think 
there  is  evidence  enough  to  have  the  case  go  to  the  jury; "  and 
he  refused  to  direct  an  acquittal. 

In  the  closing  argument  of  the  district  attorney  to  the  jury, 
he  made  the  statemnnt :  "  From  the  testimony  in  this  case,  it 
appears  that  two  men  who  came  here  with  him  (the  defendant) 
are  just  as  big  thieves  as  this  defendant."  The  defendant's 
counsel  objected  to  the  statement,  and  the  district  attorney 
responded :  "  I  will  take  it  back,  if  it  makes  it  any  better,  and 
say  that  I  do  not  know  as  they  are  quite  as  big  thieves  as  he 
is."  The  defendant's  counsel  renewed  his  objection,  and  the 
court  ruled  "  that  the  remarks  of  the  district  attorney  were 
warranted  by  the  evidence."  After  convriotion  and  sentence, 
the  defendant  sued  out  this  writ  of  error. 


J,  J.  McAvUfe,  for  plaintiff  in  error. 

John  L.  Erdall,  Assistant  Attorney-General,  for  the  State. 

PiNNEY,  J.  1.  Chapter  63  of  the  laws  of  1893,  provides  that 
"every  person  who  shall  knowingly  have  in  his  possession  any 
engine,  machine,  tool,  or  implement  adapted  and  designed  for 
cutting  through,  forcing  or  breaking  open  any  building,  room, 
vault,  safe  or  other  depository  in  order  to  steal  therefrom  any 


SCOTT  V.  STATE. 


153 


money  or  property  knowing  the  same  to  be  adapted  and  de- 
sio-ned  for  the  purposes  aforesaid,  with  intent  to  use  or  employ 
the  same  for  the  purposes  aforesaid,  shall  be,  on  conviction 
thereof,  punished,"  etc.  The  intent  essential  to  constitute  the 
offense,  is  the  intent  to  use  or  employ  such  implements  or  tools 
for  the  purpose  of  cutting  through,  forcing,  or  breaking  open 
any  building,  room,  vault,  safe,  or  other  depository,  in  order  to 
steal  therefrom  any  money  or  property;  and  this  is  clearly  and 
plainly  charged  in  the  information  in  the  very  words  of  the 
statute.  As  the  offense  is  a  statutory  one,  the  information 
thus  charging  it  is  sufficient.  The  intent  specified  in  the 
statute  is  to  accomplisli  a  certain  result  in  order,  or  so  that  the 
accused  may  steal  from  any  building,  room,  or  safe,  etc.,  money, 
etc.,  and  it  was  enough  to  allege  possession  of  such  tools,  etc., 
with  the  intent  specified  and  in  the  language  of  the  statute. 
In  Com.  V.  Tivtwn,  8  Gray,  375,  380,  under  a  statute  the  same 
in  terms  as  the  present,  it  was  held  that  "  the  general  intent 
was  sufficient,  and  it  was  not  necessary  to  allege  or  prove  any 
intent  to  use  the  tools  in  a  particular  place,  or  for  a  particular 
purpose,  or  in  any  definite  manner."  From  the  very  nature  of 
the  offense  it  would,  in  general,  be  impossible  to  allege  or 
show  an  intent  to  deprive  any  particular  owner  of  his  property. 
The  objection  to  the  information  was  rightly  overruled. 

2.  The  court  properly  ruled  that  there  was  evidence  suf- 
ficient to  require  that  the  case  should  be  submitted  to  the  jury, 
and  for  that  reason  denied  the  motion  to  discharge  the  de- 
fendant and  direct  an  acquittal.  In  the  ruling  of  the  court 
upon  the  objections  to  the  remarks  of  the  district  attorney,  we 
think  the  trial  judge  committed  a  serious  error,  requiring  a 
reversal  of  the  judgment  and  a  new  trial.  The  statement  of 
the  district  attorney  in  his  closing  argument  was  not  by  way 
of  legitimate  argument,  but  by  assertion  of  a  fact,  stated  quite 
explicitly,  that  the  defendant  was  a  thief,  and  that  the  two 
men  who  came  to  the  city  with  him  "  were  just  as  big  thieves 
as  this  defendant; "  and,  when  objection  was  made,  he  reiter- 
ated the  charge,  saj'ing :  "  I  will  take  it  back  if  it  makes  it 
any  better,  and  say  that  I  do  not  know  as  they  are  quite  as 
big  thieves  as  he  is."  The  bill  of  exceptions  purports  to  con- 
tain all  the  evidence  given  on  the  trial,  and  we  find  nothing 
in  the  bill  to  warrant  the  assertion  of  the  district  attorney, 
which  went  to  the  jury  with  tiie  sanction  of  the  opinion  of  the 


Bf>   'i 


m 


!ti 


154 


AMERICAN  CRIMINAL  REPORTS. 


court  in  its  favor,  to  the  effect  that  "  the  remarks  of  the  dis- 
trict attorney  were  warranted  by  the  evidence." 

There  was  no  evidence  that  the  defendant  had  ever  been 
convicted,  or  had  ever  been  guilty  of  larceny.  He  was  on 
trial  for  having  tools,  implements,  etc.,  in  his  possession,  in 
order  to  steal  from  buildings,  rooms,  safes,  etc.,  such  money  or 
property  as  he  might  find  therein,  and  with  intent  to  unlaw- 
fully use  and  employ  said  tools  for  such  purposes.  Whether 
he  had  possession  of  them  for  that  purpose  and  with  that  in- 
tent, was  a  vital  question,  entirely  for  the  jury  upon  the  evi- 
dence. The  fact  that  he  had  them  secreted  in  the  legs  of  his 
pants  and  in  his  shoes,  was  evidence  from  wli  c  i  the  jury  might 
or  might  not  infer  the  criminal  purpose  alleged.  The  repeated 
assertion  of  the  district  attorney  that  the  defendant  was  a  thief, 
followed  by  the  ruling  of  the  court  that  it  was  warranted  by 
the  evidence,  could  not  but  have  exercised  a  decided  influence 
upon  the  jury.  The  defendant  was  entitled  to  a  trial  upon  the 
evidence  produced,  unaffected  by  the  statement  of  extrinsic 
facts  or  extraneous  considerations.  The  effect  of  the  ruling  in 
question  was  to  impair  that  right,  and  to  improperly  and  un- 
favorably affect  his  case  before.the  jury.  For  this  reason  there 
must  be  a  new  trial. 

The  judgment  of  the  municipal  court  is  reversed,  and  the 
cause  is  remanded  for  a  new  trial. 

The  keeper  of  the  house  of  correction  for  Milwaukee  county 
will  deliver  the  defendant  to  the  sheriff  of  Milwaukee  county, 
who  will  receive  and  keep  him  in  his  custody  until  discharged 
therefrom  by  due  course  of  law. 

"Note.— Indictment  for  burglar]/— Sujffkienq/  o/.— Pen.  Code,  California, 
provides  that,  in  cases  where  the  indictment  charges  a  previous  conviction, 
and  defendant  has  confessed  the  same,  the  clerk,  in  reading  it,  shall  omit 
therefrom  all  that  relates  to  such  previous  conviction.  Held,  that  it  waa 
error  to  admit  testimony  tending  to  show  a  previous  conviction,  defendant 
having  confessed  the  same.    People  v.  Thomas,  110  Cal.  41. 

Variance,  between  the  description  of  a  house,  in  an  indictment  charging 
that  defendant,  at  N.,  in  the  county  of  H.,  broke  and  entered  the  house  of 
C,  "there  situate,"  and  stole  therefrom,  and  evidence  that  the  house  was 
in  H.,  in  the  same  county,  is  fatal.    State  v.  Kelley,  66  N.  H.  577, 

An  indictment  charging  the  breaking,  entering  and  stealing  from  the 
house  of  C,  situate  at  N.,  in  the  county  of  H.,  can  not,  without  submission 
to  the  gi-and  jury,  be  amended  by  alleging  that  the  house  was  in  H.,  in  the 
same  county,  this  being  a  matter  of  substance,  and  not  of  form,  as  to  which 
amendment  is  allowed  by  Gen.  Laws,  New  Hampshire.    Id. 


LOWE  V.  VOLP. 


155 


Where  an  indictment  for  burglary  alleged  that  the  accused  broke  and 
entered  a  storehouse  with  the  intent  to  commit  the  larceny  of  a  "  five  gal- 
lon keg  of  whisky,  of  the  value  of  |15,"  and  there  was  ample  evidence  to 
sliow  the  breaking  and  entry  by  the  accused  and  the  actual  larceny  by  him 
from  that  house  of  a  keg  of  whisky  containing  five  gallons,  and  also  that 
the  same  was  of  some  value,  the  case  was  sufficiently  made  out,  without 
further  proof  as  to  value.    McCrary  v.  State,  96  Ga.  435. 

In  an  indictment  predicated  upon  revised  statutes  of  Florida,  for  the 
breaking  and  entry  in  the  night  time  or  in  the  day  time  of  any  other  building 
than  a  dwelling  house,  or  other  house  within  the  curtilage  of  a  dwelling 
house,  with  intent  to  commit  a  felony,  it  is  not  necessary  expressly  to  allege 
that  such  building  is  not  a  dwelling  house,  or  house  within  the  curtilage  of 
the  dwelling  house;  but,  when  the  building  entered  does  not  belong  to  the 
dwelling  house  class,  it  is  sufficient  to  describe  it  in  the  indictment  by  any 
apt  words  of  description  showing  that  it  is  a  building,  such,  for  example,  as 
"storehouse,"  "office,"  "shop,"  and  the  like — which  general  description 
will  sufficiently  negative  the  idea  that  such  building  may  belong  to  the 
dwelling  house  class.    Rimes  v.  State,  86  Fia.  691. 

In  an  indictment  for  burglary,  allegations  as  to  the  ownership  of  the 
goods  stolen  from  the  building  may  be  treated  as  surplusage,  and  therefore 
the  failure  to  prove  such  ownership  as  alleged  is  not  ground  for  reversal. 
Brown  v.  State,  72  Miss.  997. 


■''■'-'',  *ijj 


m 
in 

1 ;  1 

1  .     '  '.'1 

11 

( 

■'i'li^l 


(Queen's  Bench  Division.) 
Lowe  v.  Volp. 


■  ■  'm 


(18  C:k)x's  Crim.  Cas.  253.) 

By-Laws  :  Reaimnableness — Validity— TVamway  company— Passenger  re- 
quired to  show  ticket  if  any— Tramway  Act,  1870  {33  and  34  Vict, 
c.  78,  s.  4G). 

1.  A  tramway  company,  under  the  powers  of  Sect.  46  of  the  Tramways  Act 

1870,  made  the  following  by-law:  "  Each  passenger  shall  show  his 
ticket  (if  any),  when  required  so  to  do,  to  the  conductor  or  any  duly 
authorized  servant  of  the  company',  and  shall  also,  when  requires!  to  do 
so,  either  deliver  up  his  ticket  or  pay  the  fare  legally  demanded  for  the 
distance  traveled  over  by  such  passenger."  A  further  by-law  imposed 
a  penalty  for  breach  of  any  of  the  company's  by-laws. 

2.  The  respondent  refused  to  show  his  ticket  when  asked  to  do  so  by  an  in- 

spector  of  the  company,  but  gave  a  number  which  was  the  number  of 
the  ticket  which  he  had  received  from  the  conductor  of  the  company. 
He  had  duly  paid  his  fare,  and  had  no  intention  to  defraud,  and  had  not 
in  fact  defrauded  the  company.  Held,  that  the  by-law  was  reasonable 
and  valid,  and  the  respondent  ought  to  be  convicted  of  a  breach  of  it. 


! ; 


1. ' 


r 


I  ' . . 


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it 


15 


15G 


AMERICAN  CRIMINAL  REPORTS. 


Case  stated  by  one  of  the  metropolitan  police  mngistratos. 

At  the  hearing  the  following  facts  were  proved  or  ad- 
mitted : 

The  appellant,  Ernest  Lowe,  an  insi)ector  of  the  South  Lon- 
don Tramways  Company,  entered  one  of  the  cars  of  the  com- 
pany in  which  the  respondent,  P.  T.  Volp,  Avas  traveling,  and 
asiied  the  latter  to  show  him  his  ticket.  The  respondent  re- 
fused to  show  the  ticket,  but  gave  the  inspector  a  number 
which  was  the  number  of  the  ticket  which  he  had  received  from 
the  conductor.  The  respondent  had  duly  paid  his  fare,  and  in 
refusing  to  show  his  ticket  had  no  intention  to  defraud,  and 
did  not  in  fact  defraud,  the  appellant  company.  No  alterna- 
tive demand  was  made  by  the  comininy's  officials  for  the  faro 
on  non-production  of  the  ticket  by  the  respondent. 

The  appellants  contended  that  the  respondent  was  liable  to 
a  penalty  not  exceeding  40  s.  under  by-law  22  of  the  com- 
pany's by-laws,  for  refusing  to  show  his  ticket  in  conformity 
with  by-law  10. 

Bv-law  10  is  as  follows : 

"  Each  passenger  shall  show  his  ticket  (if  any),  when  re- 
quired so  to  do,  to  the  conductor  or  any  duly  authorized  serv- 
ant of  the  company,  and  shall  also,  when  required  so  to  do, 
either  deliver  up  his  ticket  or  pay  the  fare  legally  demandable 
for  the  distance  traveled  over  by  such  passenger." 

The  learned  magistrate  was  of  opinion  that,  assuming  the 
bv-law  to  be  valid  in  law,  the  reasonable  construction  of  it  re- 
quired  it  to  be  read  as  giving  to  the  respondent  the  alterna- 
tive of  either  showing  his  ticket  or  paying  the  fare,  and  this 
alternative  was  not  offered  to  him.  If  this  construction  were 
wrong,  then  the  by  law  was  unreasonable  as  offering  no  alter- 
native, and  therefore  bad.  He  was  further  of  opinion  that  the 
by-law  was  invalid,  and  not  authorized  by  the  power  to  make 
by-laws  conferred  by  Sect.  46  of  the  Tramways  Act,  1870,  in 
that  no  power  is  given  by  that  statute  to  the  company  by 
means  of  by-laws  to  impose  penalties  upon  their  passengers 
for  an  act  which,  at  most,  would  be  a  breach  of  contract,  and 
not  fraudulent, 
the  summons. 


The  learned  magistrate  therefore  dismissed 


Spokes  ( W.  Ilume-  Williams  with  him)  for  the  appellant. 
jF.  Wait,  for  the  respondent. 


LOWE  V.  VOLP. 


157 


LiNDLEY,  L.  J.  It  appears  to  me  that  this  case  is  really  cov- 
ered by  authority.  The  learned  magistrate  has  refused  to 
convict  the  respondent,  who  was  summoned  for  breach  of  a  by- 
law made  by  the  tramway  company  under  the  powers  of  Sect. 
40  of  the  Tramways  Act,  1870.  That  section  authorizes  the 
promoters  of  any  tramway  to  make  regulations  for  regulating 
the  traveling  in  or  upon  any  carriage  belonging  to  them;  and 
a  later  section  allows  a  reasonable  penalty  to  be  imposed.  The 
company  accordingly  made  this  by-law :  (The  learned  judge 
read  the  by-law  as  set  out  above,  and  proceeded:)  I  agree  with 
^[r.  Watt  that  that  may  be  regarded  as  two  by-laws  in  one 
clause.  The  first  part  is,  that  the  passenger  shall  show  his 
ticket  (if  any;  when  required;  and,  the  second  is,  that  he  shall 
deliver  up  his  ticket  when  required  or  pay  the  fare.  Kow, 
this  second  part  has  been  before  the  Court  on  more  than  one 
occasior,  especially  in  the  case  of  Heap  v.  Day  {uhi  sup.),  and 
in  a  case,  Hanks  v.  Bridrpnan,  decided  in  this  court  a  few  days 
ago,  in  which  we  followed  Heap  v.  Day.  Now,  the  only  argu- 
ment in  favour  of  the  respondent  which  has  struck  me  as  being 
of  value  is,  that  a  company  has  no  power  to  impose  a  duty 
upon  its  passengers  merely  in  order  to  check  the  honesty  of  its 
own  servants.  But  that  argument  was  really  disposed  of  in 
Heap  V.  Day,  and  we  can  not  sitting  here  overrule  that  case. 
Now,  the  learned  magistrate,  having  found  as  a  fact,  that  Mr. 
Volp  did  refuse  to  show  his  ticket,  gives  three  reasons  for 
refusing  to  convict  him.  He  was  of  opinion,  in  the  first  place, 
that  the  proper  construction  of  the  by-law  required  it  to  be 
reatl  as  giving  the  respondent  the  alternative  of  either  showing 
his  :icket  or  paying  the  fare,  and  this  aliernative  was  not  given 
to  him.  With  deference  to  the  learned  magistrate,  I  am  unable 
to  read  the  by-law  in  any  such  way.  I  can  not  tack  on  the  alter- 
native "  pay  the  fare  legally  demandable"  to  the  first  clause  of 
it :  "  Each  passenger  shall  show  his  ticket  (if  any)."  The 
words  "  if  any,"  are  very  important.  There  is  no  alterna- 
tive given  there. 

The  alternative  of  i)aying  the  fare  is  confined  to  the  second 
clause  of  the  by-law,  in  which  the  passenger  is  required  to 
give  up  his  ticket  or  pay  the  fare;  but  it  has  nothing  to  do  with 
the  first  clause.  I  think,  therefore,  the  learned  magistrate  ^las 
misconstrued  the  10th  by-law.  Then  his  second  reason  is,  that, 
if  the  by-law  is  not  to  be  construed  as  giving  the  passenger  the 


n 


m 


ililL 


168 


AMERICAN  CRIMINAL  REPORTS. 


alternative,  it  is  unreasonable  and  bad.  But,  again,  I  do  not 
see  anything  unreasonable  in  imposing  a  small  penalty  on  a 
man  who  has  a  ticket  but  refuses  to  show  it.  The  only 
conceivable  reason  for  so  holding  is  that  already  alluded  to, 
which  was  negatived  in  Heap  v.  Day;  and  we  have  the  ex- 
press opinion  of  Lush,  J.,  in  Saunders  v.  The  South  Ea»tern 
Railway  Company  {nhi  sup.),  that  such  a  by-law  \vould  be  per- 
fectly reasonable.  The  learned  magistrate's  second  reason 
seems  to  me,  therefore,  untenable.  Then  his  third  ground 
was,  that  the  company  had  exceeded  their  powers  under  Sect. 
46  of  the  Tramways  Act,  1870,  "  in  that  no  power  is  given  by 
the  statute  to  the  company  by  means  of  by-laws  to  impose 
penalties  upon  their  passengers  for  an  act  which  at  most  would 
be  a  breach  of  contract  and  not  fraudulent."  That  ground 
was  supported  by  reference  to  Saunders  v.  South  Eastern  R  til- 
way  Company,  Haven  v.  North  Eastern  Raihoay  Company, 
Dyson  v.  London  and  North  Western  Railway  Company,  and 
Bentham  v.  Hoyle.  But  looking  at  these  cases,  we  see  that  in 
every  one  of  them  the  statute  dealt  with  precisely  the  same 
case  as  the  by-law,  and  the  by-law  omitted  words  in  the 
statute  which  were  necessary  for  the  protection  of  the  subject. 
But  Sect.  51  (the  penalty  clause)  of  the  Tramways  Act  has  no 
such  language,  and  we  have  the  authority  of  Heap  v.  Day, 
that  at  all  events  the  second  part  of  this  by-law  is  reasonable 
for  regulating  the  traffic  in  or  upon  the  tramway.  On  all  these 
grounds  I  think  the  learned  magistrate  was  mistaken,  and  the 
appeal  must  be  allowed. 


Kay,  L.  J.  I  am  of  the  same  opinion.  I  can  not  agree 
with  the  construction  put  upon  the  by-law  by  the  learned 
magistrate.  It  appears  to  me  obvious  that  the  alternative  of 
paying  the  fare  legally  demandable,  applies  only  to  the  second 
part  of  the  by-law,  and  can  not  apply  to  that  part  which  deals 
with  the  passenger  showing  his  ticket.  Now,  it  is  contended 
that  that  is  an  unreasonable  by-law.  In  Heap  v.  Day  it  has 
been  held  to  be  a  good  by-law  as  regards  the  second  part  of 
it.  But,  no  doubt,  the  first  part  was  not  specially  considered 
in  that  case,  and  therefore  it  is  open  to  Mr.  Watt  for  argu- 
ment. Now,  the  matter  arises  thus :  Sect.  51  of  the  Tram- 
ways Act  provides  for  a  penalty  on  any  passenger  who  wil- 
fully attempts  to  avoid  paying  his  fare,  or  wilfully  refuses  to 


LOWE  V.  VOLP. 


150 


lonvo  the  car  at  the  end  of  the  journey  for  which  ho  has  paid. 
Tiion  section  4G  gives  the  promoters  of  any  tramway  power — 
subjoct  to  this  Act — to  make  regulations  for  regulating  the 
tratflc,  and  b3'-law8  for  enforcing  the  same.  I  agree  that  if 
this  by-law  were  to  the  effect  that  if  a  passenger  did  not  pay 
his  fare  he  should  be  liable  to  a  penalty,  and  omitted  the  words 
in  the  statute  which  show  that  the  penalty  was  only  imposed 
by  statute  on  a  person  who  wilfully  omitted  to  pay,  that 
would  be  creating  a  new  offense  and  imposing  a  penalty  in 
circumstances  where  the  statute  plainly  did  not  intend  there 
should  be  one.  But  is  that  the  purpose  of  this  by-law  ?  I  do 
not  think  it  is  at  all.  This  is  strictly  a  by-law  made,  to  take 
the  words  of  the  statute,  "  for  regulating  the  traveling  in  or 
upon  any  carriage  of  the  company."  Now,  a  passenger  when 
he  pays  his  fare  gets  a  ticket  from  the  conductor.  The  com- 
pany can  certainly  make  a  by-law  to  compel  the  conductor  to 
give  a  ticket,  and  he  does  give  one.  Then  an  inspector  may 
call  u})on  a  passenger  to  show  his  ticket,  and  the  by-law 
says  he  shall  show  it,  "  if  any,"  Avhen  required  so  to  do,  to  the 
conductor  or  any  duly  authorized  servant  of  the  company. 

It  is  well  known  that  companies  have  a  check  upon  their 
servants,  by  employing  inspectors  to  ask  passengers  to  show 
their  tickets.  This  by-law,  no  doubt,  was  made  for  that  pur- 
pose. Or  the  conductor  himself  may  forget  if  he  has  given  a 
passenger  a  ticket,  and  may  wish  to  see  it.  But  the  passenger 
is  only  obliged  to  show  it,  "  if  any,"  which  means,  of  course,  if 
he  has  one  to  show.  He  may  have  lost  his  ticket,  and  in  that 
case  could  not  show  it.  But  why  is  this  by-law  unreasonable  ? 
It  does  not,  in  the  least,  carry  any  further  the  right  of  the  com- 
pany to  proceed  against  a  passenger  for  not  paying  his  fare. 
It  is  a  by-law  to  regulate  the  traffic,  and  I  should  think  to  give 
the  company  a  check  upon  the  conductor,  and  the  passenger 
ought  to  be  liable  for  breaking  it.  But  then  it  is  said  every- 
thing ought  to  be  presumed  in  favor  of  a  person  charged  with 
a  criminal  offense,  and  it  should  be  inferred  that  the  man  had 
lost  his  ticket.  I  can  not  agree  to  that.  The  language  of  the 
case  is  entirely  against  it.  If  he  had  lost  his  ticket  he  would 
have  said  so.  The  case  expressly  finds  that  he  refused  to  show 
it.  I  can  only  judge  that  he  Avanted  to  test  the  question 
whether  ho  was  obliged  to  show  his  ticket.  In  my  opinion  he 
is  obliged.    I  think  this  is  a  perfectly  reasonable  by-law.    It 


(  1,,"' 


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IGO 


AMERICAN  CRIMINAL  REPORTS. 


does  not  infringe  the  statute  or  extend  the  law  as  to  Lhe  pay- 
ment of  fares  beyond  Sect.  51.  I  think  the  learned  magistrate 
was  wrong,  and  that  he  ought  to  have  convicted. 


1',* 

II  ^11 


;   T  i- 

3    ■  •-  :'., 

i     ■ » 


Bli/th,  Dntton,  Ilartley  dt  Blyth,  solicitors  for  the  appellant. 
E.  Ji.  Oliver,  solicitor  for  the  respondent. 

Note. — Ordinance  prohibiting  stabling  of  more  than  two  horses  void. — 
An  ordinancp  of  the  council,  prohibiting  the  stabling  of  more  than  two 
horses,  exccjjt  by  those  obtaining  permission  of  the  council,  is  unequal  in  its 
operation,  and  hence  void,  because  repu^jnant  to  the  fourteenth  amend- 
ment of  the  Constitution  of  the  United  States.  Wo  Lee  v.  Hopkins,  118  U. 
S.  856;  State  v.  Maimer,  43  La.  Ann.  490;  State  v.  Kuntz,  47  La.  Ann.  100. 

State  board  of  health— Validity  of  regulation— Pigpens  near  divelUngs. — 
A  regulation  by  the  state  board  of  health  of  Vermont,  authorized  by  art 
1886,  as  amended  by  act  1892,  to  enforce  such  regulations  for  the  preserva- 
tion of  the  pub'ic  health  in  contagious  dis  >ases,  and  regarding  the  causts 
tending  to  their  i^evelopment,  as  shall  be  loemed  proper,  prohibiting  the 
maintenance  of  pigjens  within  one  hundrec  feet  of  any  dwelling  or  well  or 
spring  used  for  drinking,  irrespective  of  i\vy  locality  where,  or  the  nianntr 
in  whic;h  they  are  conducted,  is  unreaaonablo  and  invalid.  State  v. 
Spnyn.  C7  Vt.  503. 

Commenting  upon  the  case,  Mr.  Justice  Start  says  :  "  It  can  not  be  said 
that  all  pigpens  situated  within  one  hundred  feet  of  a  well  or  spring  of 
water  used  for  drinking  purposes,  or  witliir,  one  hundred  feet  of  a  street  or 
inhabited  house,  endanger  public  health,  or  that  tliere  are  reasonable 
grounds  for  apprehending  that  they  do.  They  may  or  may  not  thus  endan- 
ger the  public  health.  Very  much  depends  upon  the  manner  of  constinic- 
tion,  the  way  they  are  kept  and  occupied,  the  means  for  keeping  them 
clean,  the  location  and  surroundings,  the  character  and  slope  of  the  land, 
their  nearness  to,  or  remoteness  from  thickly  settled  communities,  and  the 
existence  or  non-existence  of  diseases  and  causes  of  diseases.  A  pigpen 
may  be  a  menace  to  public  health  when  situated  in  a  city  or  village,  and 
perfectly  harmless  when  situated  upon  a  farm;  and  the  fart  that  a  pigpen 
situated  in  a  city  or  village  is  a  nuisance,  .and  endangers  public  health  and 
ought  to  be  abated,  furnishes  no  reasonable  ground  for  abating  a  pigpen 
upon  a  farm,  which  is  not  a  nuisance,  and  in  no  way  affects  the  public 
health.  The  regulation  is  intended  to  have  force  and  effect  tlirougliout  the 
entire  State.  It  affects  alike  those  pigpens  which  are,  as  a  matter  of  fact, 
maintained  in  such  a  manner  as  to  be  offensive,  and  those  which  are 
maintained  with  every  possible  degi-ee  of  cleanliness;  it  alfects  alike  those 
situated  upon  farms  and  those  situated  in  thickly-settled  communities;  and 
it  affects  all  pigpens  within  the  prohibited  limit,  without  reference  to  the 
existence  or  non-existence  of  epidemic  or  contagious  diseases,  and  the 
causes  wliich  tend  to  their  development  and  spread,  in  any  paiticulur 
locality." 


STATE  V.  WILLIAJIS. 


161 


State  v.  "Williams. 

(73  Miss.  992.) 

CarryinoConcealkd  Weapons:    United  States  Marshal. 

Tlie  code  of  Mississippi  provides  that  a  peace  officer  or  deputy,  in  discharge 
of  his  duties,  shall  not  be  punishable  for  carrying  concealed  weapons. 
Rev.  St.  U.  S.,  §  788,  provides  that  marshals  and  their  deputies  shall 
have  in  each  State  the  same  powers  in  executing  the  laws  of  the  United 
States  as  the  sheriffs  in  such  State  may  have  in  executing  the  laws 
thereof.  Held,  that  a  deputy  marshal,  acting  within  his  district,  had 
the  right  to  carry  such  weapon  in  the  execution  of  a  waiTant  for  an 
arrest. 

Appeal  from  Circuit  Court,  Chickasaw  County;  Newnan 
Cayce,  Judge. 

O.  C.  Williams  was  indicted  for  carrying  concealed  weap- 
ons, and  acquitted.     The  State  appeals.    Affirmed. 

On  the  trial  Williams  testified  that  at  the  time  he  was  seen 
with  the  concealed  weapon,  ho  was  a  deputy  United  States 
marshal,  and  was  on  his  way  to  arrest  a  man  for  whom  he  had 
a  cajnas.  The  district  attorney  objected  to  this  testimony, 
also  to  the  introduction  of  the  capias  alluded  to,  because  a 
dei)uty  United  States  marshal  did  not  come  within  the  excep- 
tion of  the  statute  against  carrying  concealed  weapons.  The 
court  overruled  the  objection.  The  jury  we'-e  instructed  by 
tlie  court  that  if  they  believed  from  the  evidence  that  the 
defendant,  at  the  time  he  carried  the  concealed  weapon,  was 
acting  in  the  discharge  of  his  duties  as  deputy  United  States 
marslial,  and  had  a  capias  in  his  possession,  to  arrest  the  par- 
ties therein  named,  they  should  acquit. 

Frank  Johnston,  Attorney-General,  for  the  State. 

Wfirn«iELD,  J.  The  appellee  was  a  regular  deputy  United 
States  marshal  for  the  eastern  division  of  the  northern  district 
of  Mississippi,  and  was.  at  the  time  of  his  arrest,  acting  within 
the  said  division  and  district,  in  the  execution  of  a  warrant  for 
the  arrest  of  one  Fayette  Hill.  Under  such  circumstances,  he 
had  tlie  right,  as  a  peace  olRcer,  within  paragraph  c,  section 
1027,  Code  1892,  to  carry  the  weapon.  This  is  clearly  settled  by 
The  Tug  Gorgas,  10  Ben.  Adm.,  400,  471,  and  Gioin  v.  Breed- 
love,  2  How.  {\5.  S.)  29.  Rev.  St.  U.  S.,  §  788,  provides  that "  the 
11 


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m 


I.  \ 


162 


AMERICAN  CRIMINAL  REPORTS. 


marslials  and  their  deputies  shall  have,  in  each  State,  the  same 
])o\vers,  in  executing  the  laws  of  the  United  States  as  the  sher- 
iffs and  tlieir  deputies  in  such  State  may  have,  by  law,  in  exe- 
cuting the  laws  thereof."  One  view  of  this  statute,  originally 
enacted  July  29,  1S61  (12  Stat.  282),  is  that  it  merely  confers 
on  marshals  and  their  deputies  such  powers  of  sheriffs  and 
their  deputies  as  they  had  in  their  res|)ective  States  at  the 
date  of  this  enactment,  July  29,  ISGl;  that  the  act  confers  upon 
such  marshals  and  their  deputies,  in  addition  to  the  "  powers 
conferred  upon  them  by  the  laws  of  Congress  and  the  rules  and 
practice  of  the  courts,"  the  aforesaid  powers  of  sheriffs  and 
their  deputies,  and  that  no  restrictive  State  statute,  passed 
after  July  29,  1861,  could  take  away  any  powers  conferred  by 
said  act.  This  is  the  view  adopted  in  T/ie  Tug  Gorgas,  supra. 
The  other  view  regards  this  section  788  (Rev.  St.  U.  S.)  as  confer- 
ring upon  marshals,  within  their  respective  States,  "such  powers 
in  executing  the  laws  of  the  United  Statfis,  as  bv  the  laws  of  the 
same  States  are,  from  time  to  time,  conferred  upon  sheriffs  to 
execute  the  laws  of  the  State,  making  the  provision  perambu- 
latory,"  and  this,  we  think,  clearly  the  sounder  construction. 
Under  either  construction,  however,  the  charge  in  this  case  was 
correct.  See,  further,  Gould  &  Tucker's  Notes  on  Eev.  St.  U. 
S,,  p.  230,  §  788.  The  point  presented  by  this  appeal  is  wholly 
different  from  that  in  Ex  parte  Clem  Lea,  in  which  the  writer 
of  this  opinion  was  the  counsel  for  the  State.  There  the  deputy 
United  States  marshal  was  outside  his  district  and  in  a  differ- 
ent State.    Affirmed. 

Note. — T7ie  intent. — The  criminal  intent  in  the  ofTonse  of  carrying  con- 
cealed weapons,  is  the  intent  to  carry  the  weapon  concealed;  and  where  de- 
fendant had  a  right  to  carry  the  weapon  openly,  but  concealed  it  about  his 
person,  a  conviction  will  not  be  disturbed,  in  the  absence  of  evidence  satis- 
factorily explaining  the  concealment.    State  v.  Pigford,  117  N.  C.  748. 


State   v.  Kindio. 
(55  Kas.  113.) 


Change  of  Venue:    Eecord  must  show  that  defendant  requested  or  con- 
sented to  change. 

1.  Where  a  change  of  venue  of  a  cause  is  actually  made  by  a  district  court 
to  some  other  county  in  the  same  district,  upon  the  written  application 


STATE  V.  KINDIG. 


163 


of  tlip  dpfenclant  that  he  can  not  have  a  fair  trial  thcroin,  such  order  is 
not  fatally  defective  because  it  omits  to  specify  tiie  cause  of  removal. 

2.  Where  a  criminal  cause  is  properly  removed  for  trial  from  one  county  to 

another  county  in  the  same  judicial  district,  the  district  court,  having 
jurisdiction  of  the  cause  by  such  removal,  may  try  the  defendant  upon 
a  certified  transcript  of  the  recoi-d  and  proceedings. 

3.  Section  10  of  tliel   ■of  rights  guarantees  to  the  accused  in  a  criminal 

rjitise  a  trial  by  a  jury  of  tlie  county  or  district  in  which  the  offense  is 
all.  I  to  have  been  committed.  This  constitutional  riglit  may  be 
waived  with  the  consent  of  the  accused,  and,  unless  the  removal  of  the 
cause  to  a  county  in  a  different  judicial  district  is  clearly  shown  by  the 
record  to  have  been  made  u  itii  the  consent  of  the  accused,  the  re- 
moval is  witiiout  any  autliority  of  law. 

4.  Ti!    record  in  this  case  examined,  and  held  not  to  show  that  the  accused 

i  aived  his  constitutional  right  to  be  tried  within  the  judicial  district 
in  wliich  the  offense  with  which  he  is  cliarged  is  alleged  to  have  beea 
committed. 

Ap])cal  from  District  Court,  Thomas  County;  Charles  W. 
Smith,  Judoe.  , 

R.  O.  Kindig  was  convicted  of  receiving  a  deposit  for  his 
bank,  knowing  the  bank  to  be  insolvent,  and  appeals.  Ee- 
versed. 

On  the  7th  of  October,  1893,  an  information  was  filed  in  the 
District  Court  of  Decatur  County,  charging  R  O.  Kindig,  as 
cashier  aiul  manager  of  the  State  Bank  of  Oberjin,  with  hav- 
iiiji^,  on  the  li^th  of  July,  1893,  unlawfully  received  a  deposit 
of  ft()3.25  for  said  bank,  when  he  knew  the  bank  at  that  time 
was  insolvent.  At  the  October  terra  of  the  court,  for  1893,  of 
Decatur  county,  the  State,  with  leave  of  the  court,  filed  an 
amended  information.  Thereupon  the  defendant  filed  his  writ- 
ten application  for  the  court  to  grant  him  a  change  of  venue 
to  the  district  court  of  some  other  county,  in  the  Seventeenth 
Judicial  District,  upon  the  ground  "  that  the  minds  of  the 
inhabitants  of  the  county  of  Decatur,  the  county  in  which  the 
said  case  is  now  pending,  are  so  prejudiced  against  the  defend- 
ant that  a  fair  trial  can  not  be  had  therein."  This  application 
was  supported  by  twenty-five  affidavits.  After  hearing  the 
application,  and  being  fully  advised  thereof,  the  court  made 
the  following  order:  "  The  venue  of  said  cause  is  changed  to 
Cheyenne  county,  in  said  Seventeenth  Judicial  District,  and  the 
trial  of  said  cause  is  set  for  the  November,  1893,  term  of  said 
district  court  sitting  in  and  for  said  countv  and  State."  The 
trial  of  the  case  was  continued  from  the  November  term  of 
1S93,  to  the  Anril  term  of  1891. 


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164 


AMERICAN  CRIMINAL  REPORTS. 


At  the  April  term  of  the  District  Court  of  Che\'enne  county 
for  1894,  and  on  the  5th  day  of  April,  the  venue  was  changed 
from  Cheyenne  county  to  Thomas  county  in  the  Thirty- 
Fourth  Judicial  District.  The  record  on  that  point  reads: 
"  Counsel  for  defendant  thereupon  called  tl  e  court's  attention 
to  paragraph  5238,  Gen.  St.,  Kan.,  and  espe  ;ially  to  the  third 
clause  thereof,  viz.,  that  the  court  had  heret  jfore  been  counsel 
for  the  State  in  said  cause.  Thereupon  it  appearing  to,  and 
being  within,  the  knowledge  of  the  judge  presiding  and  the 
court  that,  theretofore,  as  county  attorney  of  Decatur  county, 
Kansas,  where  said  cause  was  originally  begun  and  filed,  as 
such  officer,  he  had  verified,  filed  the  information  therein,  and 
acted  as  counsel  for  the  State  in  the  said  cause,  therefore,  and 
for  such  reasons,  it  is  ordered,  considered  and  adjudged  by  the 
court  that  the  venue  in  said  cause  be  changed  to  the  county  of 
Thomas,  in  the  State  of  Kansas,  the  same  being  within  the 
Thirty-Fourth  Judicial  Dit.irict  of  the  said  State.  And  it  is 
further  ordered  by  the  court  that  the  clerk  of  tlie  District  Court 
in  and  for  Cheyenne  county,  Kansas,  forward,  fortliwitii,  to 
the  clerk  of  the  District  Court  of  Thomas  county,  Kansas,  a 
true,  correct  and  complete  transcript  of  all  ])leadings,  com- 
plaints, informations,  recognizance,  and  records  of  said  cause. 
To  which  order  of  the  court  the  defendant  then  and  there 
asked  an  exception  to  be  entered."  At  the  June  term  of  the 
court  for  Thomas  county,  for  1894,  when  the  State  attempted 
to  offer  evidence,  the  defendant  objected  to  the  introduction 
of  any  testimony,  upon  the  ground  "  that  the  court  had  no 
jurisdiction  to  hear  and  try  the  case,  and  also  upon  the  ground 
that  the  jury  were  not  impaneled  from  the  county  or  district  in 
which  the  offense  was  alleged  to  have  been  committed."  This 
objection  was  overruled.  On  the  23d  day  of  June,  1894,  the 
jury  returned  a  verdict  of  guilty  against  the  defendant.  Sub- 
sequently the  defendant  filed  a  motion  in  arrest  of  judgment, 
and  also  for  a  new  trial.  These  motions  were  overruled.  The 
court  sentenced  the  defendant  to  confinement  to  the  State  ])eni- 
tentiary  for  the  period  of  three  years,  and  also  adjudged  that 
he  pay  the  costs  of  the  prosecution.     The  defendant  apj)eals. 

Bertram  &  McElroy  and  J.  B.  Hamilton^  for  appellant. 
John  T.  Little,  Attorney-General,  and  0.  Angevine,  for  the 
State. 


STATE  V.  KINDIG. 


165 


IIoRTON,  C.  J.  (after  stating  the  facts).  It  is  insisted  that 
the  District  Court  of  Cheyenne  county  had  no  jurisdiction  of 
tills  case  on  a  change  of  venue  from  Decatur  county  because 
the  order  of  removal  was  made  prior  to  any  plea  to  the  infor- 
mation, and  because  the  removal  did  not  specify  the  cause 
therefor.     Section  179  of  the  Criminal  Code,  reads  : 

"  Everv  order  for  a  removal  of  anv  cause,  under  the  fore- 
foing  provisions,  shall  state  whether  the  same  is  made  on  the 
application  of  the  party  or  on  facts  within  the  knowledge  of 
the  court  or  judge,  and  shall  specify  the  cause  of  removal,  and 
designate  the  county  to  which  the  cause  is  removed." 

1.  It  is  claimed  upon  the  part  of  the  State,  that  a  plea  of  not 
guilt}"^  was  entered  before  the  application  for  removal  of  the 
cause  was  granted,  but  that  the  plea  was  unintentionally  omit- 
ted from  the  record.  This,  however,  is  immaterial.  It  is  held 
to  be  better  practice  to  arraign  the  defendant  and  require  him  to 
])lead  to  the  information  before  making  an  order  for  a  change 
of  venue;  but,  where  the  defendant  applies  for  the  chan„:e,  and 
has  the  benefit  of  arraignment  in  the  county  to  which  the 
cause  is  transferred,  he  has  no  right  to  complain  that  the 
change  was  made  before  his  arraignment.  Iludley  v.  State,  30 
Ark.  237.  See,  also.  Ex  parte  Cox,  12  Tex.  App.  605.  As 
the  removal  was  actually  made  upon  the  application  of  the  de- 
fondant,  and  as  he  had  the  benefit  of  arraignment  in  Che3'enne 
county,  there  was  no  material  evror  in  transferring  the  case 
to  that  county  for  trial  before  the  plea  was  entered.  State  v. 
Potter,  16  Kan.  SO.  The  better  rule  is  that  the  statute  should 
be  literally  complied  with,  and  the  ground  for  a  change  bo 
fully  spread  on  the  record.  But  it  appears  in  this  case  that 
the  removal  was  actually  made  upon  the  written  ap])lication 
of  the  defendant,  and  the  showing  made  by  him  upon  affidavits 
that  he  could  not  have  a  fair  trial  in  the  county  where  the  in- 
formation was  filed.  The  application  of  the  defendant  for  a 
removal  of  the  cause  must  be  read  in  connection  with  the  order 
of  the  court  granting  the  same,  and  therefrom  it  ajipears  that 
the  removal  was  allowed  upon  the  application  of  the  defend- 
ant, and  for  the  cause  s])ocified  therein. 

2.  It  is  next  insisted  that  the  District  Court  of  Cheyenne 
county  committed  error  in  entertaining  jurisdiction  of  the 
cause  after  removal,  and  re(]uiring  the  defendant  to  plead  to  a 
certified  transcript  of  the  information.     Not  so.     Nothing  but 


Uui 


rr 


1G6 


AMERICAN  CRIMINAL  REPORTS. 


t 


'i 


a  transcript  of  the  record  and  proceeding  is  authorized  to  bo 
transmitted  by  the  district  cleric  to  the  county  to  which  the 
ca  ;e  is  removed.    /State  v.  Elddle,  20  Kan,  711. 

3.  It  is  further  insisted  that  the  removal  of  the  cause  from 
Cheyenne  county,  in  the  Seventeentli  Judicial  District,  to 
Thomas  ciiinty,  in  the  Thirty-fourth  District,  Avas  without 
authority  of  law.  By  section  10  of  the  Jjill  of  Kiglits,  a  defend- 
ant in  a  criminal  cause  is  guarantied  a  trial  by  a  jury  of  tin; 
county  or  district  in  which  the  offense  is  alleged  to  have  been 
committed.  Undoubtedly  the  provision  s(H;uring  to  the  ac- 
cused a  public  trial,  within  the  county  or  district  in  which  tlu; 
offense  is  committed,  is  of  the  highest  imi)ortance.  It  jH'e- 
vents  the  possibility  of  sending  him  for  trial  to  a  remote 
district,  at  a  distance  from  friends,  among  strangers,  and 
perhaps  parties  animated  by  prejudices  of  a  ])ersonal  or  par- 
tisan character.  But  a  defendant  may  waive  his  constitutional 
right  or  personal  privilege  by  his  consent.  State  v.  Potttr, 
Hxpra;  In  re  ILtlconih,  21  Kan.  028.  U|>on  the  ])art  of  the 
State,  it  is  insisted  that  the  removal  of  the  cause  from  Chey- 
enne county  to  Thomas  county  was  made  with  the  consent  of 
the  defendant,  and  that  he  can  not  now  complain.  But  we  do 
not  so  read  the  record.  The  diifeiidant  did  not  make  any 
written  or  oral  api)lication  for  the  removal  of  the  cause  to 
Thomas  county  or  to  any  different  district.  After  the  caus(^ 
had  been  removed  to  Cheyenne  county,  counsel  for  the  defend- 
ant called  the  court's  attention  to  section  173  of  the  Criminal 
Code,  and  especially  to  the  third  subdivision  thereof,  which 
provides  for  transferring  a  case  to  a  different  district,  "  where 
the  judge  is  in  anywise  interested  or  prejudiced  or  shall  have 
been  counsel  in  the  cause."  But  when  the  court  made  an  order 
removing  the  case  to  Thomas  county,  the  defendant  obje(;te(l, 
and  had  his  exception  entered  of  record. 

Again,  when  the  case  was  called  for  trial  in  Thomas  county, 
the  defendant  raised  the  question  of  the  jurisdiction  of  the  court, 
and  objected  to  that  court  proceeding  with  the  trial.  Under 
paragraph  190.5,  Gen.  St.  1880,  of  the  act  concerning  District 
Courts,  a  judge  j'>w  tern,  may  be  selected  "  when  the  judge  is  in- 
terested, or  has  been  of  counsel  in  the  case  or  suliject-mattrr 
thereof,  or  is  related  to  either  of  the  parties,  or  otherwise  dis- 
qualified to  sit."  So,  under  the  statute,  a  defendant  may  be 
tried  before  a  judge  j'l^o  tern.,  where  the  district  judge  is  dis- 


STATE  V.  KINDIG. 


1G7 


qualified  by  interest  or  other  ;viso,  or  he  may,  with  his  consent, 
have  the  cause  removed  to  a  iHtrerent  district.  In  this  case 
there  was  no  express  consent  on  the  part  of  the  dcfen(hint  to 
have  the  cause  removed  from  his  district.  The  most  that  can  ho 
said  is  that  he  consented  inferontially  to  sucli  rcnioval  by  call- 
iiif  tiie  court's  attention  to  section  17o  of  the  Criminal  Code. 
Jle  did  not  expressly  request  that  the  cause  be  transferred  to  a 
different  district  under  the  provision  of  that  section.  On  the 
other  hand,  ho  expressly  objected  to  the  transfer.  If  counsel  for 
the  defendant  misled  the  court  at  first,  in  referring  to  section 
173  of  the  Criminal  Code,  defendant  is  not  concluded,  because  ho 
objected  to  the  order  to  transfer.  Before  the  order  of  removal 
was  entered  of  record,  the  court  was  fully  informed  that  the 
defendant  did  not  consent,  but  jjositively  objected  to  having 
his  cause  sent  to  a  different  district.  The  constitutional  guar- 
anty, securing  to  an  accused  a  trial  witiiin  the  county  or  dis- 
ti»ict  in  which  the  offense  is  committed,  ought  not  to  bo 
annulled  ujKm  a  mere  inference  or  imi)lication.  Tiierefore, 
upon  the  record,  we  can  not  say  that  the  defendant  consented 
to  the  removal  of  the  cause  to  a  different  district,  or  that  he 
Avaived  his  constitutional  riglit  to  be  tried  in  the  district  in 
which  the  offense  is  alleged  to  have  been  committed.  Under 
the  ])rovisions  of  the  constitution  and  the  statute,  the  removal 
of  the  cause  from  Cheyenne  count}'  to  Thomas  county,  against 
the  objection  of  the  defendant,  was  without  authority  of  law. 
Tiie  cause  is  pending  in  ClK^yenne  county,  and  all  proceedings, 
subsecjuont  to  the  attempted  removal  from  that  county  must 
be  ignored.  The  case  may  ])roceed  to  trial  in  Cheyenne 
county,  as  if  no  removal  h.ul  been  attemi)t('d.  The  judgment 
will  be  reversed,  and  cause  renwunlod  for  further  proceo<lings 
in  .accordance  with  the  views  herein  expressed.  All  the  justices 
concurring. 

NOTR. — Ch(niff<  of  irtnir  vsiuiUf/  dcpordu  upon  the  mtmhcr  of  nfflihivlts 
OH  one  Ki'ilc  or  flu'  o//m'/'.—  Li'j^isliitiou  shonlil  ho  luloptod  by  the  St;it<'s,  n-- 
Kl>!'i'li\  ely,  Ko  thill  Ihi'  fhaiiKt'  of  venue,  ill  enmiiiiil  cases,  might  ho  seivired 
without  heiiig  coiupelU'il  to  resort  to  the  iiiiseeiiily  H[)e(.'ta(;lo  of  hiiv  hig  all 
the  Koiiil  and  true  men  of  the  eouiily,  wlio  heiievo  the  defendant  is  a 
"  hoise-lhief,"  and  ouglit  to  he  lumished  (>n  Kt'i't'iul  I'lineiplis,  make, affi- 
davits that  (h'fendant  ran  procure  a  fair  trial,  and  ani'ijual  number  of  sim- 
ilar citizens,  who  lilo  Hworn  slalementa  sliowin;;-  that  defendant  can  not 
procure  a  fair  trial.  It  should  be  loft  to  tho  oatii  of  the  accused,  and  if 
not  niado  wlien  called  to  pleail,  he  ouKht  to  lu>  precluded  from  making  tlw 
application  ufterward,  so  far  as  related  to  the  prejudice  of  the  people. 


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168 


AMERICAN  CRIMINAL  REPORTS. 


On  a  motion  for  a  change  of  venue,  defendant's  attorney  swore  that  the 
clerk  of  the  court  was  active  in  the  prosecution,  and  had  stated  tliat  he  be- 
lieved defendant  guilty,  and  that  tile  prejudice  of  the  people  against  his 
client  justified  him  in  saying  that  defendant  could  not  have  a  fair  trial  in 
the  county.  It  was  also  alleged  that  repeated  threats  had  been  made  to 
lynch  defendant.  There  was  filed  a  paper,  signed  by  twenty-five  citizens 
of  the  county,  stating  that  from  repeate'l  expressions  of  public  indignation 
in  the  county,  by  the  citizens  thereof,  they  did  not  believe  that  defendant 
could  have  a  fair  trial  in  the  county.  Held,  that  a  chpnge  of  venue  was 
properly  denied.    Jackson  et  al.  v.  State,  104  Ala.  1, 


Sparf  et  al.  v.  United  States. 


'! 


(156  U.  S.  51.) 

Confessions  :    Evidence  adviissible  as  to  one  defendant — Province  of  court 

and  jury  as  to  the  law. 

1.  The  mere  fact  that  one  is  confined  under  charge  of  a  capital  offense,  does 

not  make  his  confession  involuntary. 

2.  A  general  objection  made  on  the  joint  trial  of  two  pei-sons  for  murder, 

by  counsel  representing  both,  to  the  confession  of  one,  made  after  the 
homicide,  and  not  in  the  presence  of  the  other,  as  incompetent,  is  siil- 
ficient  to  entitle  the  latter  to  have  it  excluded  as  to  him.  Mr.  Justice 
Brew^er  and  Mr.  Justice  Brown,  dissenting. 

3.  In  criminal  cases,  as  in  civil  cases,  the  determination  of  the  law  is  for 

the  court,  and  it  may  refuse  to  charge  on  degrees  of  homicide,  of  which 
there  is  no  evidence,  and  may  state  that,  under  the  evidence,  there 
must  be  either  acquittal  or  conviction  of  murder.  Mr.  Justice  Gray 
and  Air.  Justice  Shiras  dissenting. 

In  error  to  the  Circuit  Court  of  the  United  States  for  the 
Northern  District  of  California. 

3fr.  J.  F.  Smith  and  Ifr.  F.  J.  Kicrce,  for  plaintiffs  in  error. 
Assistant  Attorney- General  Conrad,  for  defentlunts  in  error. 

Mr,  Justice  Harlan  delivered  the  opinion  of  the  court. 

The  plaintiffs  in  error  and  Thomas  St.  Clair  were  indicted 
jointly  for  the  murder  of  Maurice  Fitzgerald,  upon  the  hio-h 
seas,  on  board  of  an  American  vessel,  the  bark  Ilesper,  as  set 
forth  in  the  indictment  mentioned  in  St.  Clair  v.  U.  S.,  154 
U.  S.  134.  On  motion  of  the  accused,  it  was  ordered  that  they 
be  tried   separately.    St.  Clair  was   tried,  found  guilty  of 


riPARF  ET  AL.  v.  UNITED  STATES. 


1G9 


mnrfler,  and  sentenced  to  suffer  the  punishment  of  death. 
Subsequently,  the  order  for  separate  trials  was  set  aside,  and 
the  present  defendants  were  tried  together,  aivl  both  were  con- 
victed of  murder.  A  motion  for  a  new  trial  having  been  over- 
ruled, a  like  sentence  was  imposed  u])on  them. 

The  general  facts  of  this  case  do  not  differ  from  those  proved 
in  St.  Clair's  case,  and  some  of  the  questions  arising  upon  the 
present  assignments  of  error  were  determined  in  that  case. 
Only  such  questions  will  be  here  examined  as  wore  not  prop- 
erly presented  or  did  not  arise  iii  the  other  case,  and  as  are  of 
sullicient  importance  to  require  notice  at  our  hands. 

In  the  night  of  January  13,  1893,  Fitzgerald,  the  second  mate 
of  the  Ilesper,  was  found  to  be  missing,  and  it  was  believed 
that  he  had  been  killed,  and  his  body  thrown  overboard.  Sus- 
])icion  being  directed  to  St.  Chiir,  Sparf  and  Hansen,  part  of 
the  crew  of  the  Ilesper,  as  participants  in  the  killing,  they 
were  put  in  irons,  by  order  of  Captain  Sodergren,  master  of  the 
vessel,  and  were  so  kept  during  the  voyage  from  the  locality  of 
the  supposed  murder  to  Tahiti,  an  island  in  the  South  Pacific, 
belonging  to  the  French  government.  They  were  taken  ashore 
by  the  United  States  consul  at  that  island,  and  subsequently 
were  sent,  with  others,  to  San  Francisco,  on  the  vessel  Tropic 
Bird. 

At  the  trial.  Captain  Sodergren,  a  witness  for  the  govern- 
ment, was  asked  whether  or  not,  after  the  I3th  day  of  January, 
and  before  reaching  Tahiti,  which  was  more  than  1,000  miles 
from  the  locality  of  the  alleged  murder,  he  had  any  conversa- 
tion with  the  defendant  Hansen  about  the  killing  of  Fitzgerald. 
This  question  having  been  answered  by  the  witness  in  the  af- 
firmative, he  was  fully  examined  as  to  the  circumstances  under 
which  the  conversation  was  held.  He  said,  among  other 
things,  that  no  one  was  '^••esent  but  Hansen  and  himself.  Being 
asked  to  repeat  the  coiiversation  referred  to,  the  accused,  by 
the  counsel  who  had  been  appointed  by  the  court  to  represent 
them,  objected  to  the  question  as  "  irrelevant,  immaterial,  and 
incompetent,  and  upon  the  ground  that  any  statement  made 
by  Hansen  was  not  and  could  not  be  voluntary."  The  objec- 
tion was  overruled,  and  the  defendants  duly  excepted.  The 
witness  then  stated  what  Hansen  had  said  to  him.  That  evi- 
dence tended  strongly  to  show  that  Fitzgerald  was  murdered, 
pursuant  to  a  plan  formed  between  St.  Clair,  Sparf  and  Ilan- 


wj, 
(  / 


',  t 


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\J^ 


''  at 


II 


170 


AMERICAN  CRIMINAL  REPORTS. 


hi 


m  i-  r- 


sen;  tliat  all  throe  actively  participated  in  the  murder;  and 
that  tlio  criiae  was  coiinnittoJ  under  the  most  revolting  circum- 
stancos. 

Thomas  Green  and  Edward  Larsen,  two  of  the  crew  of  the 
Ilospor,  were  also  witnesses  for  the  government.  Tliey  were 
l)onnilte(l  to  state  what  Hansen  said  to  them  during  the  voy- 
a<'o  from  Tahiti  to  San  Francisco.  This  evidence  was  also 
objected  to  as  irrelevant,  immaterial,  and  incompetent,  and 
upon  the  further  ground  that  the  statement,  the  accused  was 
represented  to  have  made,  was  not  voluntary.  But  the  objec- 
tion was  overruled,  and  an  exception  taken. 

Upon  the  conclusion  of  the  evidence,  the  defendants  re- 
quested certain  instructions,  which  the  court  refused  to  give, 
and  they  excepted  to  its  action  in  that  particular,  as  well  as 
to  certain  parts  of  the  charge  to  the  jury. 

1.  The  declarations  of  Hansen,  as  detailed  by  Sodergren, 
Grceu  and  Larsen,  were  clearly  admissible  in  evidence  against 
him.  There  was  no  ground  on  which  their  exclusion  could 
have  been  sustained.  In  reference  to  this  proof,  the  court 
charged  the  jury  that  if  they  believed  from  the  evidence  that 
Green  and  Larsen,  or  either  of  them,  \vere  accomplices  in  the 
commission  of  the  acts  charged  in  the  indictment,  they  should 
act  upon  their  testimony  with  great  caution,  subjecting  it  to  a 
careful  examination,  in  the  light  of  all  the  other  evidence,  and 
ought  not  to  convict  upon  their  testimony  alone,  unless  satis- 
lied  beyond  reasonable  doubt  of  its  truth;  that  if  Larsen  and 
Green,  or  either  of  them,  or  any  other  person,  were  induced  to 
testify  by  promises  of  immunity  from  punishment,  or  by  hope 
held  out  from  any  one  that  it  would  go  easier  with  them  in 
case  they  disclosed  their  confederates,  or  in  case  they  impli- 
cated some  one  else  in  the  crime,  this  must  be  taken  into  con- 
sideration in  determining  the  weight  to  be  given  to  their 
testimony,  and  should  be  closely  scrutinized;  that  the  confes- 
sions of  a  prisoner  out  of  court  and  in  custody,  made  to  persons 
having  no  authority  to  examine  him,  should  be  acted  uj)on  and 
received  with  great  care  and  caution;  that  words  are  often 
misreported  through  ignorance,  inattention,  or  malice,  are 
extremelyliableto  misconstruction,  are  rarely  sufficient  to  Avar- 
rant  conviction,  as  well  on  account  of  the  great  danger  of  mis- 
take upon  the  part  of  the  witness,  as  of  the  fact  that  the  mind 
of  the  prisoner  himself  may  be  oppressed  by  his  situation  or 


SPARF  ET  AL.  v.   UNITED  STATES. 


171 


influenced  by  motives  of  hope  or  fear  to  make  an  untrue  con- 
fession; that,  in  considering  the  weight  to  be  given  to  the 
alleged  confessions  of  the  defendants,  the  jury  were  to  con- 
sider their  condition  at  the  time  they  were  made,  the  fact  that 
they  had  been  charged  with  crime,  and  were  in  custody,  and 
that  the  jury  were  to  determine  whether  those  confessions 
were  voluntary,  or  whether  any  inducements  were  held  out  to 
them  by  any  one.  The  defendants  did  not  offer  themselves  as 
witnesses,  and  the  court  took  care  to  say  that  a  person  charged 
with  crime  is  under  no  obligation  to  testify  in  his  own  behalf, 
and  that  his  neglect  to  testify  did  not  create  any  presumption 
whatever  against  him. 

So  far  as  the  record  discloses,  these  confessions  were  entirely 
free  and  voluntary,  uninfiuenced  by  any  hope  of  reward  or 
fear  of  punishment.  In  Ilopt  v.  Utah,  110  U.  S.  574,  584,  it 
was  said  :  "  While  some  of  the  adjudged  cases  indicate  distrust 
of  confessions  which  are  not  judicial,  it  is  certain,  as  observed 
by  Baron  Parke,  in  Iie(/.  v.  Baldry,  2  Dennison  Cr.  Cas.  430, 
445,  that  the  rule  against  their  admissibility  bas  been  some- 
times carried  too  far,  and  in  its  application,  justice  and  com- 
mon sense  have  too  frecpiently  been  sacrilicod  at  the  shrine  of 
mercy.  A  confession,  if  freely  and  voluntarily  made,  is  evi- 
dence of  the  most  satisfactory  character.  Such  a  confession, 
said  Eyre,  0.  B.  {King  v.  ]Va?'ick,s/uill,  1  Leach,  Cr.  263),  'is 
deserving  of  the  highest  credit,  because  it  is  presumed  to  flow 
from  the  strongest  sense  of  guilt,  and  therefore  it  is  admitted 
as  proof  of  the  crime  to  which  it  refers.'  Elementary  writers 
of  authority  concur  in  saying  that  while,  from  the  nature  of 
such  evidence,  it  must  be  subjected  to  careful  scrutiny,  and 
received  with  great  caution,  a  deliberate  voluntary  confession 
of  guilt  is  among  the  most  effectual  proofs  in  the  law,  and 
constitutes  the  strongest  evidence  against  the  party  making  it 
that  can  be  given  of  the  facts  stated  in  such  confession." 

Counsel  for  the  accused  insist  that  there  can  not  be  a  vol- 
untary statement,  a  free  o|ien  confession,  while  a  defendant 
is  confined  and  in  irons,  under  an  accusation  of  having:  com- 
mitted  a  capital  offense.  We  have  not  been  referred  to  any 
authority  in  support  of  that  position,  it  is  true  that  the  fact 
of  a  prisoner  being  in  custody  at  the  time  he  makes,  a  confes- 
sion is  a  circumstance  not  to  be  overlooked,  because  it  bears 
upon  the  inquiry  whether  the  confession  was  voluntarily  made, 


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or  was  extorted  by  threats  or  violence,  or  made  under  the 
influence  of  fear.  But  confinement  or  imprisonment  is  not, 
in  itself,  sufficient  to  justify  the  exclusion  of  a  confession,  if  it 
appears  to  have  been  voluntary  and  was  not  obtained  by  put- 
ting the  prisoner  in  fear  or  by  promises.  Whart.  Cr.  Ev.  (9th 
Ed.),  §§  661,  663,  and  authorities  cited.  The  import  of  Soder- 
gren's  evidence  was  that,  when  Hansen  manifested  a  desire  to 
speak  to  him  on  the  subject  of  the  killing,  the  latter  said  he 
did  not  wish  to  hear  it  but  "  to  keep  it  until  the  right  time 
came,  and  then  tell  the  truth."  But  this  was  not  ofl'ering  to 
the  prisoner  an  inducement  to  make  a  confession.  Littledale, 
J.,  well  observed,  in  Bex  v.  Court,  7  Car.  &  P.  486,  that  tell- 
ino"  a  man  to  be  sure  to  tell  the  truth  is  not  advising  him  to 
confess  anything  of  which  he  is  really  not  guilty.  See,  also. 
Queen  v.  Beeves,  L.  E.  1  Cr.  Cas.  362.  Nothing  said  to  Han- 
sen prior  to  the  confession  was  at  all  calculated  to  put  him  in 
fear,  or  to  excite  any  hope  of  his  escaping  punishment  by  tell- 
inff  what  he  knew  or  witnessed  or  did  in  reference  to  the  kill- 
ing. 

The  declarations  of  Hansen,  after  the  killing,  as  detailed  by 
Green  and  Larson,  were  also  admissible  in  evidence  against 
Sparf,  because  they  appear  to  have  been  made  in  his  presence, 
and  under  such  circumstances  as  would  warrant  the  inference 
that  he  would  naturally  have  contradicted  them  if  he  did  not 
assent  to  their  truth. 

But  the  confession  and  declarations  of  Hansen  to  Soderffron 
after  the  killing  of  Fitzgerald  were  incom])etent  as  evidence 
against  Sparf.  St.  Clair,  Hansen,  and  Sparf  were  charged 
jointly  with  the  murder  of  Fitzgerald.  What  Hansen  said 
after  the  deed  had  been  fully  consummated,  and  not  on  the 
occasion  of  the  killing,  and  in  the  presence  only  of  the  wit- 
ness, was  clearly  incompetent  against  his  co-defenlant,  Sparf, 
however  strongly  it  tended  to  connect  the  latter  with  the  com- 
mission of  the  crime.  It  the  evidence  made  a  case  of  conspir- 
acy to  kill  and  murder,  the  rule  is  settled  that  "  after  the  con- 
spiracy has  come  to  an  end,  and  whether  by  success  or  by 
failure,  the  admissions  of  one  conspirator,  by  way  of  narrative  of 
past  facts,  are  not  admissible  in  evidence  against  the  others." 
Logan  v.  U.  S.,  144  U.  S.  263,  309;  Broion  v.  U.  S.,  150  U.  S.  93, 
98;  Wright's  Cr.  Consp.  (Carson's  Ed.),  212, 213,  217;  1  Green). 
Ev.,  §  233.    The  same  rule  is  applicable  where  the  evidence  does 


SPARF  ET  AL.  V.  UNITED  STATES. 


173 


not  show  that  the  killing  was  pursuant  to  a  conspiracy,  but 
yet  was  by  the  joint  act  of  the  defendants. 

The  objection  to  the  question  in  answer  to  which  the  decla- 
rations of  Hansen  to  Sodergren  Avere  given,  was  sufficiently 
specific.  The  general  rule  undoubtedly  is  that  an  objection 
should  be  so  framed  as  to  indicate  the  precise  point  upon  which 
the  court  is  asked  to  rule.  It  has,  therefore,  been  often  held 
that  an  objection  to  evidence  as  irrelevant,  immaterial,  and  in- 
competent, nothing  more  being  stated,  is  too  general  to  be  con- 
sidered on  error,  if,  in  any  possible  circumstances  it  could  be 
deemed  or  could  be  made  relevant,  material,  or  competent. 
But  this  principle  will  not  sustain  the  ruling  by  which  the 
declarations  of  Hpnsen,  made  long  after  the  commission  of  the 
alleged  murder,  and  not  in  the  presence  of  Sparf,  were  admit- 
ted as  evidence  against  the  latter.  In  no  state  of  case  were 
tliose  declarations  competent  against  Sparf.  Their  inadmissi- 
bility as  to  him  was  apparent.  It  appeared  upon  the  very 
face  of  the  question  itself.  ' 

In  People  v.  Beach,  87  N.  Y.  508,  513,  which  was  an  indict- 
ment for  petit  larceny,  the  prosecution  offered  in  evidence  the 
statements  of  a  third  party,  not  in  the  presence  of  the  accused, 
which  related  to  the  vital  point  upon  which  the  conviction 
turned.  There  was  a  general  objection  to  the  evidence.  The 
court  said :  "  We  think,  howevor,  the  general  objection  made 
in  this  case  was  sufficient.  It  appeared  when  the  objection 
was  made,  that  the  conversation  proposed  to  be  shown  was 
between  the  prosecutor  and  Hardacre,  when  the  defendant 
was  not  present.  There  was  no  possible  view  of  the  case,  as 
it  then  or  afterward  stood,  in  which  such  a  conversation 
was  admissible.  When  the  witness  was  asked  to  state  the  con- 
versation, and  counsel  objected,  both  the  court  and  the  prose- 
cuting officer  must  have  understood  that  it  was  an  objection 
to  the  competency  of  the  proposed  evidence.  If  the  objection 
had  been  made  in  terms,  on  the  ground  that  the  evidence  was 
incompetent,  the  sufficiency  of  the  objection  could  not  have 
been  questioned,  and  the  objection,  as  made,  necessarily  im- 
plied this.  Neither  the  court  nor  prosecuting  attorney  could 
have  been  misled  as  to  the  point  of  the  objection;  it  was  patent 
on  considering  the  objection  in  connection  with  the  proof 
offered.  If  any  doubi  could  be  entertained  as  to  the  tech- 
nical sufficiency  of  the  objection,  we  should  be  disinclined,  in 


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a  criminal  case,  to  deprive  a  defendant  of  the  benefit  of  an 
exception  by  the  strict  application  of  a  rule  more  especially 
applicable  to  civil  cases,  when  we  can  see  that  its  application 
would  produce  injustice."  And  in  Turner  v.  City  of  New- 
hurgh,  109  K  Y.  301,  308,  ic  was  said :  "  This  court  has 
held  that  when  the  objection  to  evidence  is  general,  and  it  is 
overruled,  and  the  evidence  is  received,  the  ruling  will  not  be 
held  erroneous,  unless  there  be  some  grounds  which  could  not 
have  been  obviated  had  they  been  specified,  or  unless  the  evi- 
dence in  its  essential  nature  be  incompetent."  Toser  v.  Eail- 
road  Co.^  105  N".  Y.  659;  Alcorn  v.  Railroad  Co.,  108  Mo.  81; 
Curr  V.  Hundley  (Colo.  App.),  31  Pac.  939,  940;  Lowenstein  v. 
McCadden,  92  Tenn.  614;   Ward  v.  Wiltns,  16  Colo.  86. 

"We  are  of  opinion  that  as  the  declarations  of  Hansen  to 
Sodergren  were  not,  in  any  view  of  the  case,  competent  evi- 
dence against  Sparf,  the  court,  upon  objection  being  made  by 
counsel  representing  both  defendants,  should  have  excluded 
them  as  evidence  against  him,  and  admitted  them  against  Han- 
sen. The  fact  that  the  objection  w^as  made  in  the  name  of  both 
defendants,  did  not  justify  the  court  in  overruling  it  as  to  both, 
Avhen  the  evidence  was  obviously  incom])etent,  and  could  not 
have  been  made  competent  against  Sparf,  and  was  obviously 
competent  against  Hansen. 

It  was  not  necessary  that  counsel  should  have  made  the 
objection  on  behalf  of  one  defendant,  and  then  formally 
repeated  it,  in  the  same  words,  for  the  other  defendant.  If 
Sparf  had  been  tried  alone,  a  general  objection  in  his  behalf, 
on  the  ground  of  incompetency,  would  have  been  sufficiently 
definite.  Surely  such  an  objection  coming  from  Sparf  when 
tried  with  another  ought  not  to  be  deemed  inelTectual  because 
of  the  circumstance  that  his  counsel,  who,  by  order  of  the  court 
represented  also  his  co-defendant,  incautiously  spoke  in  the 
name  of  both  defendants.  Each  was  entitled  to  make  his  own 
defense,  and  the  jury  could  have  found  one  of  them  guilty, 
and  acquitted  the  other.  Insurance  Co.  v.  Ilillrnon,  145  TJ. 
S.  285,  293.    See,  also,  Com.  v.  liobinson,  1  Gray,  555,  560. 

For  the  error  of  the  court  in  not  sustaining  the  objection 
referred  to,  so  far  as  it  related  to  Sparf,  the  judgment  must  be 
reversed  as  to  him.  If  he  were  the  only  defendant,  we  might 
withhold  any  expression  of  opinion  upon  other  questions 
raised  by  the  assignments  of  error.    Eut  as  some  of  those 


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SPARF  ET  AL.  v.   UNITED  STATES. 


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questions  are  important,  and  may  arise  upon  another  trial  of 
Sparf,  and  especially  as  they  must  be  now  determined  with 
reference  to  Hansen,  we  proceed  to  their  examination. 

2.  One  of  the  specifications  of  error  relates  to  the  refusal 
of  the  court  to  give  certain  instructions  asked  by  the  defend- 
ants, and  to  parts  of  the  charge  to  the  jury. 

The  defendants  asked  the  court  to  instruct  the  jury  as  fol- 
lows: 

"  In  all  criminal  causes  the  defendant  may  be  found  guilty 
of  any  offense,  the  commission  of  which  is  necessarily  included 
in  that  with  which  he  is  charged  in  the  indictment,  or  the 
defendant  may  be  found  guilty  of  an  attempt  to  commit  the 
offense  so  charged,  provided  that  such  attempt  be  itself  a  sep- 
arate offense."  "  Under  an  indictment  charging  murder,  the 
defendant  may  be  convicted  or  murder,  or  manslaughter,  or  an 
atttmpt  to  commit  either  murder  or  manslaughter."  "  Under 
the  indictment  in  this  case,  the  defendants  may  be  convicted 
of  murder  or  manslaughter,  or  of  an  attempt  to  commit  mur- 
der or  manslaughter;  and  if,  after  a  full  and  careful  considera- 
tion of  all  the  evidence  before  you,  you  believe,  beyond  a 
reasonable  doubt,  that  the  defendants  are  guilty,  either  of 
manslaughter  or  of  an  assault  with  intent  to  commit  murder 
or  i.i.-nslaughter,  you  should  so  find  j'^our  verdict."  These 
instructions  were  refused,  and  the  defendants  excepted. 

In  its  charge  to  the  jury,  the  court,  among  other  things, 
said : 

"  What,  then,  is  murder  ?  There  are  only  two  kinds  of 
felonious  homicide  known  to-  the  laws  of  the  United  States. 
One  is  murder,  and  the  other  is  manslaughter.  There  are  no 
degrees  of  murder."  "  There  is  no  definition  of  '  murder'  by 
any  United  States  statute.  We  resort  to  the  common  law  for 
that.  Ey  the  common  law,  murder  is  the  unlawful  killing  of  a 
human  being  in  the  peace  of  the  State,  with  malice  afore- 
thought, either  express  or  implied.  Malice,  then,  is  an  ele- 
ment in  the  offense,  and  discriminates  it  from  the  other  crime 
of  felonious  homicide  which  I  have  mentioned,  to  wit,  man- 
slaughter; that  is,  malice,  express  or  implied,  discriminates 
murder  from  the  offense  of  manslaughter."  "  Express  malice 
exists  when  one,  by  deliberate  premeditation  and  design, 
formed  in  advance,  to  kill  or  to  do  bodily  harm,  the  premedi- 
tation and  design  being  implied  from  external  circumstances 


<  t 


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176 


AMERICAN  CRIMINAL  REPORTS. 


capable  of  proof,  such  as  lying  in  wait,  antecedent  threats, 
0  nd  concerted  schemes  against  a  victim.  Implied  malice  is  an 
inference  of  the  law  from  any  deliberate  and  cruel  act 
committed  by  one  person  against  another.  The  two  kinds  of 
malice,  therefore,  to  repeat,  indicate  but  one  state  of  mind, 
established  in  different  ways— the  one  by  circumstances  show- 
ing premeditation  of  the  Homicide,  the  other  by  an  inference 
of  the  law  from  the  act  committed;  that  is,  malice  is  inferred 
when  one  kills  another  without  provocation,  or  when  the 
provocation  is  not  great.  Manslaughter  is  the  unlawful  kill- 
ing of  a  human  being  without  malice,  either  expressed  or  im- 
plied. I  do  not  consider  it  necessary,  gentlemen,  to  explain 
it  further,  for  if  a  felonious  homicide  has  been  committed,  of 
which  you  are  to  be  the  judges  from  the  proof,  there  is  noth- 
ing in  this  case  to  reduce  it  below  the  grade  of  murder.  In 
other  words,  it  may  be  in  the  power  of  the  jury,  under  the  in- 
dictment by  which  these  defendants  are  accused  and  tried,  of 
finding  them  guilty  of  a  less  crime  than  murder,  to  wit,  man- 
slaughter, or  an  attempt  to  commit  murder;  yet,  as  I  have 
said  in  this  case,  if  a  felonious  homicide  has  been  committed 
at  all,  of  which  I  repeat  you  are  the  judges,  there  is  nothing 
to  reduce  it  below  the  grade  of  murder." 

The  court  further  said  to  the  jury : 

"  You  are  the  exclusive  judges  of  the  credibili;  of  the  wit- 
nesses, and,  in  judging  of  their  credibility,  you  have  a  right 
to  take  into  consideration  their  prejudices,  motives,  or  feelings 
of  revenge,  if  any  such  have  been  proven  or  shown  by  the  evi- 
dence in  the  case.  If  you  believe  from  the  evidence  tiiat  any 
witness  or  witnesses  have  knowingly  and  wilfully  testifieil 
falsely  as  to  any  material  fact  or  point,  you  are  at  liberty  to 
disregard  entirely  the  testimony  of  such  witness  or  witnesses." 
"  Gentlemen,  I  have  given  you  these  instructions  as  carefully 
as  I  could,  avoiding  all  references  to  the  testimony;  but  I  do 
not  wish  to  be  misunderstood,  and  out  of  abundant  caution  I 
say  further  to  you,  in  giving  you  these  instructions,  I  may  by 
accident  hav  e  assumed  facts  to  be  proven.  If  so,  you  must  dis- 
regard the  assumption.  It  is  not  my  purpose,  nor  is  it  my 
function,  to  assume  any  fact  to  be  proven,  nor  to  suggest  to 
you  that  any  fact  has  been  proven.  You  are  the  exclusive 
judges  of  the  fact.  No  matter  what  assumption  may  apj)ear 
during  the  course  of  the  trial  in  any  ruling  of  mine,  or  what 


;  filfll 

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SPABF  ET  AL.  v.  UNITED  STATES. 


177 


mav  appear  in  any  one  of  these  instructions,  you  are  to  take 
this  case  and  consider  it,  and  remember  you  are  the  tribunal 
to  which  the  law  has  referred  the  case,  and  whose  judgment 
i  le  law  wants  on  the  case." 

After  the  jury  had  been  in  consultation  for  a  time,  they  re- 
turned into  court  for  further  instructions.  The  colloquy 
between  the  court  and  the  jurors  is  set  forth  at  large  in  the 
margin.' 

'Foreman:  There  is  one  of  us  who  wishes  to  be  instructed  by  your 
honor  as  to  certain  points  upon  the  question  of  United  States  marine  laws 
in  regard  to  murder  on  the  high  seas. 

Court:  The  instruction  wliich  I  gave  you,  gentlemen,  in  regard  to  the 
law  upon  which  the  indictment  was  based,  was  section  5339  of  the  Revised 
Statutes,  which  I  will  read  to  you  again. 

Juror:  Your  honor,  I  wrmld  like  to  know  in  regard  to  the  interpretation 
ot'  the  laws  of  the  United  States  in  regard  to  manslaughter,  as  to  whether 
the  defendants  can  be  found  guilty  of  manslaughter,  or  that  the  defendants 
must  be  found  guilty. 

Court:  I  will  read  the  section  to  you,  and  see  if  that  touches  the  proposi- 
tion. The  indictment  is  based  upon  section  5339,  which  provides,  among 
other  things,  "  that  every  "  person  who  commits  murder  upou  the  high 
seas,  or  in  any  arm  of  the  sea,  or  in  any  river,  haven,  creek,  basin,  or  bay. 
wi'jhin  the  admiralty  and  maritime  jurisdiction  of  the  United  States,  and 
out  of  the  jurisdiction  of  any  particular  State,  or  who,  upon  any  such 
waters,  maliciously  strikes,  stabs,  wounds,  poisons,  "  or  shoots  any  other 
person,  of  which  striking,  stabbing,  wounding,  poisoning,  or  shooting  such 
other  person  dies  on  land  or  at  sea,  within  or  without  the  United  States, 
shall  suffer  death."  Hence,  that  is  the  penalty  for  the  offense  described  in 
the  indictment.  I  have  given  you  the  definition  of  "  murder."  If  you  re- 
member it,  you  w^ill  connect  it  with  these  words:  "  Every  person  who 
commits  murder  upon  the  high  seas,  or  in  any  arm  of  the  sea,  or  in  any 
river,  haven,"  etc. 

Juror:    Are  the  tNvo  words  "  aiding  "  or  "  abetting  "  defined? 

Court:  Tlie  words  "  aiding  "  or  "  abetting  "  are  not  defined,  but  I  have 
instructed  you  as  to  the  legal  effect  of  aiding  and  abetting,  and  this  you 
should  accept  as  !aw.  If  I  have  made  an  error,  there  is  a  higher  tribunal 
to  correct  it. 

Juror:  I  am  the  spokesman  for  two  of  us.  We  desire  to  clearly  under- 
stand the  matter.  It  is  a  barrier  in  our  mind  to  our  determining  the  mat- 
ter. The  question  arising  amongst  us  is  to  aiding  and  abetting.  Further- 
more, aa  I  understand,  it  must  be  one  thing  or  the  other.  It  must  be  guilty 
or  not  guilty. 

Court:  Yes,  under  the  instructions  I  have  given  you.  I  will  read  them 
to  you  again,  bo  as  to  be  careful,  anil  that  you  may  understand.  Murder 
is  the  unlawful  killing  of  a  human  being  in  the  peace  of  the  State,  with 
malice  aforethought,  either  express  or  implied.  I  defined  to  you  what 
malice  was,  and  I  assume  you  can  recall  my  definition  to  your  minds. 
Manslaughter  is  the  unlawful  killing  of  a  human  being  without  malice, 
12 


it^f: 


•^•■M 


178 


AMERICAN  CRIMINAL  REPORTS. 


The  requests  for  instruction  made  by  the  defendants  were 
based  upon  section  1035  of  the  Revised  Statutes  of  the  United 
States,  providing  that  "  in  all  criminal  causes  the  defendant 
may  be  found  guilty  of  any  offense,  the  commission  of  which 

either  express  or  implied.  I  do  not  consider  it  necessary  to  explain  it 
further.  If  a  felonious  homicide  has  been  committed  by  either  of  the  de- 
fendants, of  which  you  are  to  be  the  judges  from  the  proof,  there  is  nothing 
in  this  case  to  reduce  it  below  the  grade  of  murder. 

Juror:  Then,  as  I  understand  your  honor  clearly,  there  is  nothing  about 
manslaughter  in  this  case  ? 

Court:  No;  I  do  not  wish  to  be  so  understood.  A  verdict  must  be  based 
on  evidence,  and  in  a  proper  case  a  verdict  for  manslaughter  may  be  ren- 
dered. 

Juror:  A  crime  committed  on  the  high  seas  must  have  been  murder,  or 
can  it  be  manslaughter  ? 

Court:  In  a  proper  case,  it  may  be  murder,  or  it  may  be  manslaughter; 
but  in  this  case  it  can  not  be  properly  manslaughter.  As  I  have  said,  if  a 
felonious  homicide  has  been  committed,  tlie  facts  of  the  cose  do  not  reduce 
it  below  murder.  Do  not  understand  me  to  say  that  manslaughter  or  mur- 
der has  been  committed.  That  is  for  you  gentlemen  to  determine,  from 
the  testimony  and  the  instructions  I  have  given  you.    *    ♦    * 

Mr.  Smith:    We  take  an  exception. 

Juror:  We  have  got  to  bring  a  verdict  for  either  manslaughter  or  mur- 
der? 

Court: 

Juror: 

Court: 


I  have  not  said  so. 


Do  not  misunderstand  me. 
I  know  you  have  not. 

I  can  not  direct  you  what  conclusion  to  come  to  from  the  facts. 
I  direct  you  only  as  to  the  law.    A  judgment  on  the  facts  is  your  province. 

Mr.  Garter:  May  I  ask  the  court  to  instruct  this  jury,  that  in  casts 
where  pei-sons  are  being  tried  upon  a  charge  of  murder,  and  the  facts 
proven  at  their  trial  show  that  the  defendants  are  guilty  of  manslaughter, 
under  an  indictment,  tliey  may  find  him  guilty  of  manslaughter,  as  a  gen- 
eral rule;  but,  however,  if  the  facts  show  that  the  defendants  have  been 
guilty  of  murder,  and  that,  in  this  case,  there  is  no  evidence  tending  to 
establish  the  crime  or  offense  of  manslaughter — 

Mr.  Smith:    It  is  the  province  of  the  jury. 

Court:  I  have  already  so  instructed  tlie  jury.  I  have  endeavored  to 
make  myself  understood. 

Juror:    If  we  bring  in  a  verdict  of  guilty,  that  is  capital  punishment? 

Court:    Yes. 

Juror:  Then  there  is  no  other  verdict  we  can  bring  in  except  guilty  or 
not  guilty  ? 

Court:  In  a  proper  case,  a  verdict  for  manslaughter  may  be  rendered, 
as  the  district  attorney  has  stated,  and  even  in  this  case  you  have  the 
physical  power  to  do  so;  but,  as  one  of  the  tribunals  of  the  country,  a  jury 
is  expected  to  be  governed  by  law,  and  the  law  it  should  receive  from  the 
court 

Juror:  There  has  been  a  misunderstanding  amongst  us.  Now  it  is 
clearly  interpreted  to  us,  and  no  doubt  we  can  now  agree  on  certain  facts. 


SPARF  ET  AL.  v.  UNITED  STATES. 


179 


is  necessarily  iucluded  in  that  with  which  he  is  charged  in  the 
indictment,  or  may  be  found  guilty  of  an  attempt  to  commit 
the  offense  so  charged;  provided,  that  such  attempt  be  itself  a 
separate  oflfense." 

The  refusal  to  grant  the  defendants'  requests  for  instruc- 
tions, taken  in  connection  with  so  much  of  the  charge  as  re- 
ferred to  the  crime  of  manslaughter,  and  the  observations  of 
the  court  when  the  jury,  through  their  foreman,  applied  for 
further  instructions,  present  the  question  whether  the  court 
transcended  its  authority  when  saying,  as  in  effect  it  did,  that, 
in  view  of  the  evidence,  the  only  verdict  the  jury  could,  under 
the  law,  properly  render,  would  be  either  one  of  guilty  of  the 
offense  charged,  or  ono  of  not  guilty  of  the  offense  charged; 
that  if  a  felonious  homicide  had  been  committed  by  either  of 
the  defendants,  of  which  the  jury  were  the  judges  from  the 
proof,  there  was  nothing  in  this  case  to  reduce  it  below  the 
grade  of  murder;  and  that,  "as  one  of  the  tribunals  of  the 
country,  a  jury  is  exi^ected  to  be  governed  by  law,  and  the 
law  it  should  receive  from  the  court." 

The  court  below  assumed,  and  correctly,  that  section  1035 
of  the  Revised  Statutes  did  not  authorize  a  jury  in  a  criminal 
case  to  find  the  defendant  guilty  of  a  less  offense  than  the  one 
charged,  unless  the  evidence  justified  them  in  so  doing.  Con- 
gress did  not  intend  to  invest  juries  in  criminal  cases  with 
power  arbitrarily  to  disregard  the  evidence  and  the  principles 
of  law  applicable  to  the  case  on  trial.  The  only  object  of 
that  section  was  to  enable  the  jury,  in  case  the  defendant  was 
not  shown  to  be  guilty  of  the  particular  crime  charged,  and 
if  the  evidence  permitted  them  to  do  so,  to  find  him  guilty  of 
a  lesser  offense  necessarily  included  in  the  one  charged,  or  of 
the  offense  of  attempting  to  commit  the  one  charged.  Upon 
a  careful  scrutiny  of  the  evidence,  we  can  not  find  any  ground 
whatever  upon  which  the  jury  could  properly  have  reached 
the  conclusion  that  the  defendant  Hansen  was  only  guilty  of 
an  offense  included  in  the  one  charged,  or  of  a  mere  attempt 
to  commit  the  offense  charged.  A  verdict  of  guilty  of  an 
offense  less  than  the  one  charged  would  have  been  in  flagrant 
disregard  of  all  the  proof,  and  in  violation  by  the  jury  of  their 
obligation  to  render  a  true  verdict.  There  was  an  entire  ab- 
sence of  evidence  upon  which  to  rest  a  verdict  of  guilty  of 
manslaughter  or  of  simple  assault.    A  verdict  of  that  kind 


V. 


4 


Ml 


4m 


hi 


180 


AMERICAN  CRIMIN.'.L  REPORTS. 


would  have  been  the  exercise  by  the  jury  of  the  power  to 
commute  the  punishment  for  an  offense  actually  committed, 
and  thus  impose  a  punishment  different  from  that  prescribed 
by  law. 

The  general  question  as  to  the  duty  of  the  jury  to  receive 
the  law  from  the  court  is  not  concluded  by  any  direct  decision 
of  this  court.  But  it  has  been  often  considered  by  other 
'courts  and  by  judges  of  high  authority;  and,  where  its  deter- 
mination has  not  been  controlled  by  specific  constitutional  or 
statutory  provisions  expressly  empowering  the  jury  to  deter- 
mine both  law  and  facts,  the  principle  by  which  courts  and 
juries  are  to  be  guided  in  the  exercise  of  their  respective  func- 
tions has  become  firmly  established.  If  this  be  true,  this 
court  should  not  announce  a  different  rule,  unless  impelled  to 
do  so  by  reasons  so  cogent  and  controlling  that  they  can  not 
pro])erly  be  overlooked  or  disregarded.  Some  of  the  mem- 
bers of  this  court,  after  much  consideration,  and  upon  an 
extended  review  of  the  authorities,  are  of  opinion  that  the  con- 
clusion reached  by  this  court  is  erroneous,  both  upon  principle 
and  authority.  For  this  reason,  and  because  the  question  is 
of  great  importance  in  the  administration  of  justice,  and  also 
involves  human  life,  we  deem  it  appropriate  to  state  with  more 
fullness  than  under  other  circumstances  would  be  necessarv, 
the  grounds  upon  which  our  judgment  will  rest,  looking  first 
to  cases  determined  in  the  courts  of  the  United  States. 

In  Georgia  v.  Braihford,  3  Dall.  1, 4,  a  case  in  this  court,  tried 
by  a  special  jury  upon  an  amicable  issue.  Chief  Justice  Jay  is 
reported  to  have  said :  "  It  may  not  be  amiss  here,  gentle- 
men, to  remind  you  of  the  good  old  rule,  that  on  questions 
of  fact  it  is  the  province  of  the  jury,  on  questions  of  law  it  is 
the  province  of  the  court,  to  decide.  But  it  must  be  observed 
that,  by  the  same  law  which  recognizes  this  reasonable  distri- 
bution of  jurisdiction,  you  have,  nevertheless,  a  right  to  take 
upon  yourselves  to  judge  of  both,  and  to  determine  the  law  as 
well  as  the  fact  in  controversy.  On  this,  and  on  every  other 
occasion,  however,  we  have  no  doubt  you  will  pay  that  re- 
spect which  is  due  to  the  opinion  of  the  court;  for,  as  on  the 
one  hand,  it  is  presumed  that  juries  are  best  judges  of  facts,  it 
is,  on  the  other  hand,  presumable  that  the  courts  are  the  best 
judges  of  the  law.  But,  still,  both  objects  are  lawfully  within 
your  power  of  decision."    Of  the  correctness  of  this  report, 


SPARF  ET  AL.  v.  UNITED  STATES. 


181 


Mr.  Justice  Curtis,  in  U.  S.  v.  Harris,  1  Curt.  23,  68,  Fed.  Cas. 
No.  15,815,  expressed  much  doubt,  for  the  reason  that  the 
chief  justice  is  roj)orted  as  saying  that,  in  civil  cases — and 
that  was  a  civil  case — the  jury  liad  the  right  to  decide  the  law, 
and  because,  also,  the  different  parts  of  the  charge  conflict 
with  each  other;  the  chief  justice,  according  to  the  report, 
saying,  at  the  outset,  that  it  is  the  province  of  the  jury  to  de- 
cide questions  of  fact,  and  of  the  court  to  decide  questions  of 
law,  and,  in  the  succeeding  sentence,  informing  the  jury  that 
they  had  the  right  to  take  upon  themselves  the  determination 
of  both  law  and  fact.  If  the  chief  justice  said  that  it  was  the 
province  of  the  court  to  decide  questions  of  law,  and  the  prov- 
ince of  the  jury  to  decide  questions  of  fact,  he  could  not  have 
said  that  the  jury  had  the  right,  in  a  civil  case,  to  judge  of 
and  determine  both  law  and  fact.  "The  whole  case,"  J^Ir. 
Justice  Curtis  said,  "  is  an  anomaly.  It  purports  to  be  a 
trial  by  jury,  in  the  Supreme  Court  of  the  United  States,  of 
certain  issues  out  of  chancery;  and  the  chief  justice  begins  by 
telling  the  jury  that  the  facts  are  all  agreed,  and  the  only 
question  is  a  matter  of  law,  and  upon  that  the  whole  court 
were  agreed.  If  it  be  correctly  reported,  I  can  only  say  it  is 
not  in  accordance  with  the  views  of  an^-^  other  court,  so  far  as 
I  know,  in  this  country  or  in  England,  and  is  certainly  not  i^ 
accordance  with  the  course  of  the  Supreme  Court  for  many 
years." 

Certain  observations  of  Chief  Justice  Marshall  in  the  course 
of  the  trial  of  Burr,  have  sometimes  been  referred  to  in  sup- 
port of  the  contention  that  the  jury  in  a  crinii  al  case  are 
under  no  legal  obligation  to  accept  the  law  as  la'i  down  by 
the  court.  But  nothing  said  by  him  at  that  trial  was  incon- 
sistent with  the  views  expressed  by  eminent  jurists  in  cases  to 
to  be  presently  cited.  In  the  course  of  an  opinion,  relating 
merely  to  the  order  of  evidence,  the  Chief  Justice  said :  "  Levy- 
ing of  war  is  a  fact  which  must  be  decided  by  the  jury.  The 
court  may  give  general  instructions  on  this  as  on  every  other 
question  brought  before  them,  but  the  jury  must  decide  upon 
it  as  compounded  of  fact  and  law."  1  Burr's  Trial,  470.  This 
language  is  supposed  to  justify  the  contention  that  the  jury  in 
a  criminal  case  are  entitled,  of  right,  to  determine  questions 
of  pure  law  adversely  to  the  direction  of  the  court.  But 
that  no  such  thought  was  in  the  mind  of  the  Chief  Justice  is 


If 


I' t  Ji 

5ir 


i 


'  !' 


If 


^1 
■5tt 


f.i< 


Is!     m 


'  -m 


182 


AMERICAN  CRIMINAL  REPORTS. 


i  ■  Wl 


:f;!l 


manifest  from  his  written  charge  to  the  jury  at  a  subsequent 
stage  of  the  trial— the  accuracy  of  the  report  of  which  has 
never  been  disputed— in  which  he  discussed,  in  the  light  of 
the  authorities,  the  question  as  to  what  constituted  treason. 

In  the  course  of  that  charge  he  indicated  quite  distinctly  his 
view  of  the  respective  functions  of  court  and  jury.  ♦*  It  has 
been  thought  proper,"  he  said,  "to  discuss  this  question  at 
large,  and  to  review  the  opinion  of  the  Supreme  Court  {Eo parte 
Bollman,  4  Cranch,  76),  although  this  court  would  be  more 
disposed  to  leave  the  question  of  fact,  whether  an  overt  act 
of  levying  war  was  committed  on  Blennerhassett's  island,  to 
the  jury  under  this  explanation  of  the  law,  and  to  instruct  them 
that,  unless  the  assemblage  on  Blennerhassett's  island  was  an 
assemblage  in  force — was  a  military  assemblage  in  a  condi- 
tion to  make  war — it  was  not  levying  war,  and  that  they  could 
not  construe  it  into  an  act  of  war,  than  to  arrest  the  further 
testimony  which  might  be  offered  to  connect  the  prisoner  with 
that  assemblage,  or  to  prove  the  intention  of  those  who  assem- 
bled together  at  that  place.  This  point,  however,  is  not  to  be 
understood  as  decided.  It  will,  perhaps,  constitute  an  essen- 
tial inquiry  in  another  case."  This  language  is  wholly  incon- 
sistent with  the  theory  that  the  Chief  Justice  recognized  tlie 
right  of  the  jury  to  disregard  the  court's  view  of  the  law  upon 
any  question  arising  in  the  case  before  them.  It  was  consist- 
ent only  with  the  theory  that  the  court  could  speak  authori- 
tatively as  to  the  law,  while  the  function  of  the  jury  was  to 
respond  as  to  the  facts.  Again :  "It  is  the  further  opinion 
of  the  court  that  there  is  no  testimony  whatever,  which  tends 
to  prove  that  the  accused  was  actually  or  constructively  pres- 
ent when  that  assemblage  did  take  place;  indeed,  the  contrary 
is  most  apparent."  "  The  opinion  of  this  court  on  the  order  of 
testimony  has  frequently  been  adverted  to  as  deciding  this 
question  against  the  motion.  If  a  contradiction  between  the 
two  opinions  exist,  the  court  can  not  perceive  it.  It  was  said 
that  levying  war  is  an  act  compounded  of  law  and  fact,  of 
which  the  jury,  aided  by  the  court,  must  judge.  To  that  dec- 
laration the  court  still  adheres."  He  concluded  his  memorable 
charge  in  these  words :  "  The  jury  have  now  heard  the  opin- 
ion of  the  court  on  the  law  of  the  case.  They  will  apply  that 
law  to  the  facts,  and  will  find  a  verdict  of  guilty  or  not  guilty, 
as  their  own  consciences  may  direct."  Again,  according  to  the 


^f  ■'  .  :.: 


BPARF  ET  AL.  v.  UNITED  STATEa 


183 


onlv  rocognizod  report  of  that  trial  ever  published,  the  Chief 
Justice,  in  response  to  certain  inquiries  of  counsel,  made  after 
the  jury  returned  their  verdict,  said :    "  Without  doubt  the 
court  intended  to  deliver  merely  a  legal  opinion  as  to  what  acts 
amounted,  in  law,  to  an  overt  act  of  levying  war,  and  nob 
whether  such  an  overt  act  has  or  has  not  been  proved.    It 
merely  stated  the  law  to  which  the  jury  would  apply  the  facts 
proved.    It  is  their  province  to  say  whether,  accoi  ding  to  this 
statement  a.n(i  the  evidence,  an  overt  act  has  been  provi  d  or 
not."  2  Burr's  Trial,  401, 422, 439, 444, 445, 448.    Thclanguage 
of  the  Chief  Justice  plainly  imports  that,  while  the  jury  must,  of 
necessity,  often  pass  upon  a  question  "  compounded  of  fact  and 
law,"  their  duty,  when  considering  the  evidence,  was  to  apply 
the  law,  as  given  by  the  court,  to  the  facts  proved;  and,  thus 
applying  the  law,  return  a  verdict  of  guilty  ov  not  guilty,  as 
their  consciences  might  direct.     If  ho  bad  believed  that  the 
jury  were  entitled,  of  right,  whatever  might  be  the  views  of 
the  court,  to  determine  for  themselves  the  law  of  the  case,  it 
is  impossible  that  he  could  have  said  that  "  they  will  apply 
that  law  (the  law  as  he  declared  it  to  be)  to  the  facts."    On 
the  contrary,  he  observed  that  the  province  of  the  jury  was  to 
determine  whether  the  accused  was  guilty  or  not  guilty,  ac- 
cording to  his  statement  of  the  law  as  applied  to  the  evidence. 
Of  course,  this  court  has  no  means  of  determining  what  were 
the  views  of  Chief  Justice  Marshall,  except  by  referring  to 
such  authorized  publications  as  show  what  he  eaid  while  dis- 
charging judicial  functions.    In  none  of  his  opinions  delivered 
at  the  Circuit  Court,  and  published,  can  there  be  found  any- 
thing at  all  in  conflict  with  his  declarations  at  the  trial  of  Burr. 
And  it  may  be  observed  that  the  circumstances  attending  that 
trial  were  such  as  to  induce  him  to  weigh  every  word  embod- 
ied in  his  elaborate  written  charge  to  the  jury.    That  he 
understood  the  gravity  of  the  occasion,  so  far  as  it  related 
to  the  conduct  of  the  trial,  is  manifest  from  his  referring,  in 
the  following  language,  to  certain  considerations  that  had 
been  advanced  in  argument :    "  That  this  court  dare  not  usurp 
power,  is  most  true.    That  this  court  dare  not  shrink  from 
its  duty,  is  not  less  true.    No  man  is  desirous  of  placing  him- 
self in  a  disagreeable  situation.    !No  man  is  desirous  of  becom- 
ing the  peculiar  subject  of  calumny.    No  man,  might  he  let  the 
bitter  cup  pass  from  him  without  self-reproach,  would  drain  it 


,  i 

I 

I 


i 

® 


X 


Hi'  -^ 


1S4: 


AMEKICAN  CRIMINAL  REPORTS. 


« 


to  the  bottom.  But  if  he  have  no  choice  in  the  case,  if  there 
be  no  alternative  presented  to  him  but  a  dereliction  of  duty  or 
the  opprobrium  of  those  who  are  denominated  the  "  world,"  he 
merits  the  contempt  as  Avell  as  the  indignation  of  his  country 
who  can  hesitate  which  to  embrace.  That  gentlemen,  in  a  case 
the  most  interesting,  iu  the  zeal  with  which  they  advocate  par- 
ticular opinions,  and  under  the  conviction  in  some  measure  pro- 
duced by  that  zeal,  should,  on  each  side,  press  their  arguments 
too  far,  should  be  impatient  at  any  deliberation  in  the  court, 
and  should  suspect  or  fear  the  operation  of  motives  to  which 
alone  they  can  ascribe  that  deliberation,  is  perhaps  a  frailty  in- 
cident to  human  nature;  but,  if  any  conduct  on  the  part  of  the 
court  could  warrant  a  sentiment  that  it  would  deviate  to  the 
one  side  or  the  other  from  the  line  prescribed  by  duty  and  by 
law,  that  conduct  would  be  viewed,  by  the  judges  themselves, 
with  an  eye  of  extreme  seventy,  and  would  long  be  recollected 
with  deep  and  serious  regret." 

In  Henfield's  case,  Fed.  Cas.  No.  6,3f)0,  Mr.  Justice  Wilson, 
with  whom  sat  Mr.  Justice  Iredell,  stated  that  the  jury,  in  a 
general  verdict,  must  decide  both  law  and  fact,  but  that"  this 
did  not  authorize  them  to  decide  it  as  they  pleased,"  and  that, 
''  the  questions  of  law  coming  into  joint  consideration  with 
the  facts,  it  is  the  duty  of  the  court  to  explain  the  law  to  the 
jury,  and  give  it  to  them  in  direction."  AVhart.  St.  Tr.  48,  S4, 
88.  This  statement  of  the  principle  is  sometimes  referred  to 
in  support  of  the  proposition  that  the  jury  is  not  under  a  legal 
duty  to  accei)t  the  law  as  declared  by  the  court  in  a  criminal 
case,  We  think  it  tends  to  show  that  it  is  the  province  and 
duty  of  the  jury  to  apply  to  the  facts  of  the  case  the  law  as 
given  to  them  by  the  court  "  in  direction." 

There  is  nothing  in  conflict  with  this  in  the  lectures  on  law 
delivered  by  Mr.  Justice  Wilson.  In  one  of  those  lectures, 
referring  to  the  duties  of  jurors  in  criminal  cases,  he  said : 
"On  questions  of  law,  his  (the  juror's)  deficiencies  will  be  sup- 
plied by  the  professional  directions  of  the  judges,  whose  duty 
and  whose  business  it  is  professionally  to  direct  him;  for,  as 
we  have  seen,  verdicts,  in  criminal  cases,  generally  determine 
the  question  of  law  as  well  as  the  question  of  fact.  Questions 
of  fact  it  is  his  exclusive  province  to  determine.  With  the 
consideration  of  evidence  unconnected  with  the  question  which 
he  is  to  try,  his  attention  will  not  be  distracted;  for  everything 


m 


!1 


SPARF  ET  AL.  v.  UNITED  STATES. 


185 


of  that  nature,  we  presume,  \\  ill  be  excluded  by  the  court. 
The  collected  powers  of  his  mind,  therefore,  will  be  iixed, 
steadily  and  without  interruption,  upon  the  issue  he  is  sworn 
to  trv.  This  issue  is  an  issue  of  fact."  2  Wilson's  Works,  380. 
Other  observations  found  in  these  lectures,  if  considered  alone, 
are  not  so  explicit  ui)on  the  question  of  the  respective  func- 
tions of  court  and  jury,  but,  taken  in  connection  with  all  that 
he  said,  it  is  reasonably  clear  that  when  Mr.  Justice  Wilson 
spoke  of  the  determination  by  a  jury,  in  a  criminal  case,  of 
both  law  and  fact,  he  meant  only  that  a  general  verdict  of 
guilty  or  not  guilty,  of  necessity,  decided  every  question  be- 
fore them  which  involved  a  joint  consideration  of  law  and 
fact,  not  that  the  jury  could  ignore  the  directions  of  the  court, 
and  take  the  law  into  their  own  hands. 

The  observations  of  Mr.  Justice  Samuel  Chase,  in  the  case 
of  Fries,  Fed.  Cas.  No.  .5,12(5,  tried  for  treason,  1800,  are  sup- 
posed to  sustain  the  broad  proposition  that  the  jury  may,  of 
right,  disregard  the  law  as  expounded  by  the  court.  He  un- 
doubtedly did  say  that  while  it  was  the  duty  of  the  court,  in 
all  criminal  cases,  to  state  the  law  arising  on  the  facts,  the 
jury  were  to  decide  "  both  the  law  and  facts,  on  their  consid- 
eration of  the  whole  case."  Chase,  Trial,  Append.  45,  But 
on  the  trial,  in  the  same  year,  in  the  Circuit  Court  of  the 
United  States  for  the  Virginia  District,  of  James  Thompson 
Callender  for  seditious  libel,  he  was  appalled  at  the  suggestion 
by  learned  counsel  that  the  jury  were  entitled,  of  right,  to 
determine  the  constitutional  validity  of  the  act  of  Congress 
under  which  the  accused  was  indicted.  Mr.  Wirt,  counsel  for 
the  defendant,  said:  "Since,  then,  the  jury  have  aright  to 
consider  the  law,  and  since  the  constitution  is  law,  the  conclu- 
sion is  certainly  syllogistic  that  the  jury  have  a  right  to  con- 
sider the  constitution."  But  Mr.  Justice  Chase  declined  to 
accept  this  view.  He  said  :  "  The  statute  on  which  the  trav- 
erser is  indicted  enacts  '  that  the  jury  who  shall  try  the  cause 
shall  have  a  right  to  determine  the  law  and  the  fact,  under 
the  direction  of  the  court,  as  in  other  cases.'  By  this  provision 
I  understand  that  a  right  is  given  to  the  jury  to  determine 
what  the  law  is  in  the  case  before  them,'  and  not  to  decide 
whether  a  statute  of  the  United  States  produced  to  them  is 
a  law  or  not,  or  whether  it  is  void,  under  an  opinion  that  it  is 
unconstitutional;  that  is,  contrary  to  the  constitution  of  the 


a 


186 


AMERICAN  CRIMINAL  REPORTS. 


United  States.  I  admit  that  the  jury  are  to  compare  the  stat- 
ute with  the  facts  proved,  and  then  to  decide  whether  the  acts 
done  are  prohibited  by  the  law,  and  whether  they  amount  to 
the  offense  described  in  the  indictment.  This  power  the  jury 
necessarily  possesses,  in  order  to  enable  them  to  decide  on  the 
guilt  or  innocence  of  the  person  accused.  It  is  one  thing  to 
decide  what  the  law  is  on  the  facts  proved,  and  another  and  a 
very  different  thing  to  determine  that  the  statute  produced  is 
no  law.  To  decide  what  the  law  is  on  the  facts  is  an  admis- 
sion that  the  law  exists.  If  there  be  no  law  in  the  case,  there 
can  be  no  comparison  between  it  and  the  facts;  and  it  is  unnec- 
essary to  establish  facts  before  it  is  ascertained  that  there  is 
a  law  to  punish  the  commission  of  them." 

"  It  was  never  pretended,"  he  continued,  "  as  I  ever  heard, 
before  this  time,  that  a  petit  jury  in  England  (from  whence 
our  common  law  is  derived),  or  in  any  part  of  the  United 
States,  ever  exercised  such  power.  If  a  petit  jury  can  right- 
fully exercise  this  power  over  one  statute  of  Congress,  they 
must  have  an  equal  right  and  power  over  any  other  statute, 
and  indeed  over  all  the  statutes;  for  no  line  can  be  drawn,  no 
restriction  imposed,  on  the  exercise  of  such  power;  it  must  rest 
in  discretion  only.  If  this  power  be  once  admitted,  petit  jurors 
will  be  superior  to  the  National  Legislature,  and  its  laws  will 
be  subject  to  their  control.  TIjc  power  to  abrogate  or  to  make 
laws  nugatory  is  equal  to  the  authority  of  making  them.  The 
evident  consequences  of  this  right  in  juries  will  be  that  a  law 
of  Congress  will  be  in  operation  in  one  State,  and  not  in 
another. 

"A  law  to  impose  taxes  will  be  obeyed  in  one  State,  and  n(;t 
in  another,  unless  force  be  emplo3-ed  to  compel  submission. 
The  doing  of  certain  acts  will  be  held  criminal,  and  punished 
in  one  State,  and  similar  acts  may  be  held  innocent,  and  even 
approved  and  applauded  in  another.  The  effects  of  the  exer- 
cise of  this  power  by  petit  jurors  may  be  readily  conceived.  It 
appears  tome  that  the  right  now  claimed  has  a  direct  tendency 
to  dissolve  the  Union  of  the  United  States,  on  which,  under 
divine  Providence,  our  political  safet}^  happiness  and  pros- 
perity depend."  He  concluded  his  opinion  in  these  words : 
"  I  consider  it  of  the  greatest  consequence  to  the  administra- 
tion of  justice  that  the  powers  of  the  court  and  the  powers  of 
the  petit  jury  should  be  kept  djstinct  and  separate.    I  have 


SPARF  ET  AL.  v.  UNITED  STATES. 


187 


uniformly  delivered  the  opinion  '  that  the  petit  jury  have  a 
ri"ht  to  decide  the  law  as  well  as  the  fact  in  criminal  cases* ' 
but  it  never  entered  into  my  mind  that  they  therefore  had  a 
right  to  determine  the  constitutionality  of  any  statute  of  the 
United  States."    Whart.  St.  Tr.  713,  714,  718. 

What  Mr.  Justice  Chase  said  is  quite  sufHcient  to  show  the 
mischievous  consequences  that  would  flow  from  the  doctrine 
that  the  jury  may,  of  right,  disregard  the  directions  of  the 
court,  and  determine  the  law  for  themselves;  for  if,  as  is  con- 
tended, the  jury  in  criminal  cases  are  not  bound  to  take  the 
law  from  the  court,  it  is  impossible  to  deny  their  absolute  right 
in  a  case  depending  entirely  upon  an  act  of  Congress,  or  a  stat- 
ute of  a  State,  to  determine,  upon  their  own  responsibility, 
whether  that  act  or  statute  is  or  is  not  law;  that  is,  whether 
it  is  or  is  not  in  violation  of  the  constitution. 

Mr.  Justice  Thompson,  who  became  a  member  of  this  court 
in  1823,  concurred  in  the  opinion  delivered  by  Kent,  J.,  in 
People  V.  Croawell  (1804),  3  Johns.  Cas.  337,  362,  where  the 
court  was  equally  divided.  Chief  Justice  Lewis  and  Judge 
Brockholst  Livingston,  afterward  a  justice  of  this  court,  hold- 
ing that  to  questions  of  law  the  court,  to  questions  of  fact  the 
jury,  must  respond.  But  in  his  opinion  in  Pierce  v.  State,  13 
K  II.  536, 564,  Chief  Justice  Parker,  referring  to  Judge  Kent's 
opinion  in  People  v,  Croswell,  said  :  "  Mr.  Justice  Thompson, 
who  concurred  in  that  opinion,  must  have  understootl  that  con- 
currence to  be  merely  in  the  points  necessary  to  the  decision 
of  that  cause,  or  have  subsequently  changed  his  vit  ws;  for  I 
have  his  authority  for  saying  that  iie  has  repeatedly  ruled  that 
the  jury  are  not  judges  of  the  law  in  criminal  cases."  And  in 
the  dissenting  opinion  of  Judge  Bennett,  in  State  v.  Croteau,  23 
Vt.  14,  63  (where  it  was  held  that  the  jury,  in  criminal  cases, 
could  rightfully  decide  questions  of  both  law  and  fact,  but 
wliich  case  has  been  overruled,  65  Vt.  1,  34),  it  was  said : 
"Judge  Thompson,  whose  judicial  learning  and  experience, 
wliile  on  tho  bench  of  the  Supreme  Court  of  New  York,  and 
on  the  bench  of  the  United  States,  were  very  extensive,  thus 
wrote  to  a  friend  some  short  time  before  his  death :  '  I  have 
repeatedly  ruled  on  the  trial  of  criminal  cases  that  it  was  the 
right  as  well  as  the  duty  of  the  court  to  decide  questions  of 
law;  and  any  other  rule,  it  appears  to  me,  would  be  at  war 
with  our  whole  ju»Moial  system,  and  introduce  the  utmost  con- 


p  <i 


hi 


1S8 


AMERICAN  CRIMINAL  REPORTS. 


fusion  in  criminal  trials.  It  is  true,  the  jury  may  disregard  the 
instructions  of  the  court,  and  in  some  cases  there  may  be  no 
remedv.  But  it  is  still  the  right  of  the  court  to  instruct  the 
jury  on  the  law,  and  the  duty  of  the  jury  to  obey  the  instruc- 
tions.' "     See,  also,  Whart.  Cr.  PI.,  §  810,  note  3. 

The  remarks  of  Mr.  Justice  Baldwin  in  U.  S.  v.  Wilson  and 
Porter,  1  Baldw.  78, 100,  108,  Fed.  Cas.  No.  16,730,  have  some- 
times been  referred  to  as  in  conflict  with  the  rule  that  it  is  the 
duty  of  the  jury  to  accept  the  law  as  expounded  by  the  court. 
It  is  quite  true  that,  in  the  charge  in  Wilson's  case,  Mr.  Jus- 
tice Baldwin  said  that  if  the  jury  were  prepared  to  say  that 
the  law  was  different  from  what  the  court  had  announced,  they 
were  in  the  exercise  of  their  constitutional  right  to  do  so.  But 
in  his  charge  in  Porter's  case  he  explained  what  was  said  in 
Wilson's  case.  After  remarking  that,  if  a  jury  find  a  prisoner 
guilty  against  the  court's  opinion  of  the  law  of  the  case,  a  new 
trial  would  be  granted,  as  no  court  would  pronounce  a  judg- 
ment on  a  prisoner  against  what  it  believes  to  be  the  law,  he 
said :  "  This,  then,  you  will  understand  to  be  what  is  meant 
by  your  power  to  decide  on  the  law;  but  you  will  still  bear 
in  mind  that  it  is  a  very  old,  sound  and  valuable  maxim 
that  the  court  answers  to  questions  of  law,  and  the  jury  to 
facts.  Every  day's  experience  evinces  the  wisdom  of  this  rule." 
Subsequently,  in  U.  S.  v.  S/tive,  1  Baldw.  510, 513,  Fed.  Cas.  No. 
16,278,  which  was  an  indictment  for  passing  a  counterfeit 
note  of  the  Bank  of  the  United  States,  and  when  the  question 
arose  as  to  the  right  of  the  jury  to  pass  upon  the  constitution- 
ality of"  the  act  of  Congress  on  which  the  prosecutio"  was 
founded,  Mr.  Justice  Baldwin  said,  in  his  charge :  "  If  juries 
once  exercise  this  power  we  are  without  a  Constitution  or  laws; 
one  jury  has  the  same  power  as  another;  you  can  not  bind 
those  who  may  take  your  places;  what  you  declare  constitu- 
tional to-day  another  jury  may  declare  unconstitutional  to- 
morrow." 

The  question  before  us  received  full  consideration  by  Mr. 
Justice  Story,  in  U.  S.  v.  BattUe,  2  Sumn.  240,  2'43,  244-,  Fed. 
Cas.  No.  14,?»45.  That  was  an  imlictment  for  a  capital  offense, 
and  the  question  was  directly  presented  whether  in  criminal 
cases,  especially  in  capital  cases,  the  jury  were  the  judges  of 
the  law  as  well  as  of  the  facts.    lie  said : 

"My  opinion  is  that  the  jury  are  no  more  judges  of  the  law 


SPARF  ET  AL.  V.  UNITED  STATES. 


189 


in  a  capital  or  otlier  criminal  case,  upon  the  plea  of  not  guilty, 
tlian  they  are  in  every  civil  case  tried  upon  the  general  issue. 
In  each  of  these  cases,  their  verdict,  when  general,  is  necessa- 
rily compounded  of  law  and  of  fact,  and  includes  both.  In  each 
they  must  necessarily  determine  the  law  as  well  as  the  fact. 
In  each  they  have  the  physical  power  to  disregard  the  law,  as 
laid  down  to  them  by  the  court.  But  I  deny  that,  in  any  case, 
civil  or  criminal,  they  have  the  moral  right  to  decide  the  law 
according  to  their  own  notions  or  pleasure.  On  the  contrary, 
I  hold  it  the  most  sacred  constitutional  right  of  every  party 
accused  of  a  crime  that  the  jury  should  respond  as  to  the  facts, 
and  the  court  as  to  the  law.  It  is  the  duty  of  the  court  to 
instruct  the  jury  as  to  the  law,  and  it  is  the  duty  of  the  jury  to 
follow  the  law,  as  it  is  laid  down  by  the  court.  This  is  the 
right  of  every  citizen,  and  it  is  his  only  protection.  If  the 
jury  were  at  liberty  to  settle  the  law  for  themselves,  the  effect 
would  be,  not  only  that  the  law  itself  would  be  most  uncer- 
tain, from  the  different  views  which  different  juries  might  take 
of  it,  but  in  case  of  error  there  would  be  no  remedy  or  redress 
by  the  injured  party;  for  the  court  would  not  have  any  right 
to  review  the  law  as  it  had  been  settled  by  the  jury."  "  Every 
person  accused  as  a  criminal  has  a  right  to  be  tried  according 
to  tlie  law  of  the  land — the  fixed  law  of  the  land,  and  not  by 
the  law,  as 'a  jury  may  understand  it,  or  choose,  from  wanton- 
ness or  ignorance,  or  accidental  mistake,  to  interpret  it.  If  I 
thought  that  the  jury  were  the  proper  judges  of  the  law  in 
criminal  cases,  I  should  hold  it  my  duty  to  abstain  from  the 
responsibility  of  stating  the  law  to  them  upon  any  such  trial. 
But,  believing,  as  I  do,  that  every  citizen  has  a  right  to  be  tried 
by  the  law,  and  according  to  the  law — that  it  is  his  privilege 
and  truest  shield  against  oppression  and  wrong,  I  feel  it  my 
duty  to  state  my  views  fully  and  openly  on  the  present  occa- 
sion." 

In  U.  S.  v.  Morris,  1  Curt.  23,  51-58,  Fed.  Cas.  No.  15,815, 
the  question,  in  all  of  its  aspects,  was  examined  by  Mr. 
Justice  Curtis  with  his  accustomed  care.  In  that  case  the  con- 
tention was  that  every  jury,  impaneled  in  a  court  of  the  United 
States,  was  the  rightful  judge  of  the  existence,  construction, 
and  effect  of  every  law  that  was  material  in  a  criminal  case, 
and  could,  of  right,  and  if  it  did  its  duty  must,  decide  finally 
on  the  constitutional  validity  of  any  act  of  Congress  which  the 


'  ^  Hi 

1 

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irm 


190 


AMERICAN  CRIMINAL  REPORTS. 


ril 


trial  brought  in  question.  Touching  the  rightful  powers  and 
duties  of  the  court  and  the  jury  under  the  constitution  in  crim- 
inal cases,  Mr.  Justice  Curtis,  among  other  things,  said  :  "  The 
sixth  article,  after  declaring  that  the  constitution,  laws  and 
treaties  of  the  United  States  shall  be  the  supreme  laAV  of  the 
land,  proceeds,  *  And  the  judges  in  every  State  shall  be  bound 
thereby.' 

"  But  was  it  not  intended  that  the  constitution,  laws  and 
treaties  of  the  United  States  should  be  the  supreme  law  in 
criminal  as  well  as  in  civil  cases?  If  a  State  law  should  make 
it  penal  for  an  officer  of  the  United  States  to  do  what  an  act  of 
Congress  commands  him  to  do,  was  not  the  latter  to  be  su- 
preme over  the  former?  And  if  so,  and  in  such  cases  juries 
finally  and  rightfully  determine  the  law,  and  the  constitution 
so  means,  when  it  speaks  of  a  trial  by  jury,  why  was  this  com- 
mand laid  on  the  judges  alone,  who  are  thus  mere  advisers  of 
the  jury,  and  may  be  bound  to  give  sound  advice,  but  have  no 
real  power  in  the  matter  ?  It  was  evidently  the  intention  of 
the  Constitution  that  all  persons  engaged  in  making,  expound- 
ing and  executing  the  laws,  not  only  under  the  authority  of 
the  United  States,  but  of  the  several  States,  should  be  bound 
by  oath  or  affirmation  to  support  the  constitution  of  the 
United  States.  But  no  such  oath  or  affirmation  is  required  of 
jurors,  to  whom  it  is  alleged  the  constitution  confides  the 
power  of  expounding  that  instrument,  and  not  only  constru- 
ing, but  holding  invalid,  any  law  which  may  come  in  question 
on  a  criminal  trial."  "  In  my  opinion,"  the  learned  justice 
proceeded,  "it  is  the  duty  of  the  court  to  decide  every  question 
of  law  which  arises  in  a  criminal  trial.  If  the  question 
touches  any  matter  affecting  the  course  of  the  trial,  such  as 
the  competency  of  a  witness,  the  admissibility  of  evidence, 
and  the  like,  the  jury  receive  no  direction  concerning  it.  It 
affects  the  materials  out  of  which  they  are  to  form  their  ver- 
dict, but  they  have  no  more  concern  with  it  than  they  would 
have  had  if  the  question  had  arisen  in  some  other  trial.  If  the 
question  of  law  enters  into  the  issue,  and  forms  part  of  it,  the 
jury  are  to  be  told  what  the  law  is,  and  they  are  bound  to  con- 
sider that  they  are  told  truly;  that  law  they  apply  to  the 
facts  as  they  find  them,  and  thus,  passing  both  on  the  law  and 
the  fact,  they,  from  both,  frame  their  general  verdict  of  guilty 
or  not  guilty.    Such  is  my  view  of  the  respective  duties  of  the 


-^ 


a 
h 


k 


o 

Si 


t( 


SPARF  ET  AL.  v.  UNITED  STATES. 


191 


different  parts  of  this  tribunal  in  the  trial  of  criminal  cases, 
and  I  have  not  found  a  single  decision  of  any  court  in  Eng- 
land, prior  to  the  formation  of  the  constitution,  which  con- 
flicts with  it." 

It  was  also  contended  that  the  clause  in  the  act  of  Congress 
known  as  the  Sedition  Law  of  1798  (i  Stat.  c.  74,  §  3),  de- 
claring tliat  "  the  jury  who  shall  try  the  cause  shall  have  a 
riffht  to  determine  the  law  and  the  fact,  under  the  direction 
of  the  court,  as  in  other  cases,"  implied  that  the  jury,  "  in 
other  cases"  might  decide  the  law  contrary  to  the  direction 
of  the  court.  But  in  response  to  this  view  Mr.  Justice  Curtis 
said :  "  I  draw  from  this  the  opposite  inference,  for  where 
was  the  necessity  of  tWs  provision,  if,  by  force  of  the  constitu- 
tion, juries,  as  such,  have  both  the  power  and  the  right  to  de- 
termine all  questions  in  criminal  cases;  and  why  are  they  to 
be  directed  by  the  court  ? "  See,  also,  Montgomery  v.  State,  U 
Ohio,  427. 

But  Mr.  Justice  Curtis  considered  the  question  from  another 
point  of  view,  and  gave  reasons  which  appear  to  us  entirely 
conclusive  against  the  proposition  that  it  is  for  the  jury,  in 
every  criminal  case,  to  say  authoritatively  what  is  the  law  by 
which  they  are  to  ba  governed  in  finding  their  verdict.  lie 
said:  "There  is,  however,  another  act  of  Congress  which 
bears  directly  on  this  question.  The  act  of  the  29th  of  April, 
1802,  in  section  6,  after  enacting  that,  in  case  of  a  division  of 
opinion  between  the  judges  of  the  Circuit  Court  on  any  ques- 
tion, such  question  may  be  certified  to  the  Supreme  Court,  pro- 
ceeds :  *  and  shall  bv  the  said  court  be  finall v  decided;  and 
the  decision  of  the  Supremo  Court  and  their  order  in  the  prem- 
ises shall  be  remitted  to  the  Circuit  Court,  and  be  there  en- 
tered of  record  and  have  effect  according  to  the  nature  of  such 
judgment  and  order.'  The  residue  of  this  section  proves  that 
criminal  as  well  as  civil  cases  are  embraced  in  it,  and  under  it 
many  questions  arising  in  criminal  cases  have  been  certified  to 
and  decided  by  the  Supreme  Court,  and  persons  have  been  ex- 
ecuted by  reason  of  such  decisions.  Now,  can  it  be,  after  a 
question  arising  in  a  criminal  trial  has  been  certified  to  the 
Supreme  Court,  and  there,  in  the  language  of  this  act,  finally 
decided,  and  their  order  remitted  here  and  entered  of  record, 
that  when  the  trial  comes  on  the  jury  may  rightfully  revise 
and  reverse  this  fi^al  decision  ?    Suppose,  in  the  course  of  this 


'■*! 


i 


^\  M 


f 


192 


AMERICAN  CRIMINAL  REPORTS. 


trial,  the  judges  had  divided  in  opinion  upon  the  question  of 
the  constitutionality  of  the  act  of  IboO,  and  that,  after  a  linal 
decision  thereon  by  the  Supreme  Court  and  the  receipt  of  its 
mandate  here,  the  trial  should  come  on  before  a  jury,  does  the 
Constitution  of  the  United  States,  which  established  that  Su- 
preme Court,  intend  that  a  jury  may,  as  matter  of  right,  revise 
and  reverse  that  decision?  And,  if  not,  what  becomes  of  this 
supposed  right  ?  Are  the  decisions  of  tlie  Supreme  Court  bind- 
ing on  juries,  and  not  the  decisions  of  inferior  courts  ?  This 
will  hardly  be  pretended;  and  if  it  were,  how  is  it  to  ha  de- 
termined whether  the  Supreme  Court  has  or  has  not,  in  some 
former  case,  in  effect,  settled  a  particular  question  of  law  ?  In 
my  judgment,  this  act  of  Congress  is  in  accordance  with  the 
constitution,  and  designed  to  effect  one  of  its  important  and 
even  necessary  objects — a  uniform  exposition  and  interpreta- 
tion of  the  law  of  the  United  States — by  providing  means  for 
a  final  decision  of  any  question  of  law — final  as  respects  every 
tribunal  and  every  part  of  any  tribunal  in  the  country;  and,  if 
so,  it  is  not  only  wholly  inconsistent  with  the  alleged  power 
of  juries,  to  the  extent  of  all  questions  so  decided,  but  it  tends 
stongly  to  prove  that  no  such  right  as  is  claimed  does  or  can 
exist." 

Again  :  "  Considering  the  intense  interest  excited,  the  tal- 
ent and  learning  employed,  and  consequently  the  careful 
researches  made,  in  England,  near  the  close  of  the  last  century, 
when  the  law  of  libel  was  under  discussion  in  the  courts  and  in 
Parliament,  it  can  not  be  doubted  that,  if  any  decision,  having 
the  least  weight,  could  have  been  protluced  in  support  of  the 
general  proposition  that  juries  are  judges  of  the  law  in  crim- 
inal cases,  it  would  then  have  been  brought  forward.  I  am  not 
aware  that  any  such  was  produced.  And  the  decision  of  the 
King's  Bench  in  Hex  v.  Dean  of  St.  Asaph,  3  Term  R.  428,  note, 
and  the  answers  of  the  twelve  judges  to  the  questions  pro- 
pounded b}'  the  House  of  Lords,  assume,  as  a  necessary  postu- 
late, what  Lord  Mansfield  so  clearly  declares  in  terms,  that,  by 
the  law  of  England,  juries  can  not  rightfully  decide  a  question 
of  law.  Passing  over  what  was  said  by  ardent  partisans  and 
eloquent  counsel,  it  will  be  found  that  the  great  contest  concern- 
ing what  is  known  as  *  Mr.  Fox's  Libel  Bill '  Avas  carried  on 
upon  quite  a  different  ground  by  its  leading  friends — a  ground 
which,  while  it  admits  that  the  jury  are  not  to  decide  the  lav, 


de 

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SPARF  ET  AL.  v.  UNITED  STATES. 


193 


denies  that  tlio  libelous  intent  is  matter  of  law,  and  asserts 
that  it  is  so  mixed  with  the  fact  that,  under  the  general  issue, 
it  is  for  the  jury  to  find  it  as  a  fact.  34  An.  Keg.  170;  39 
Pari.  Dub.  Such  I  understand  to  be  the  effect  of  that  famous 
declaratory  law,  32  Geo.  III.  c.  00.  »  *  *  I  conclude,  then, 
that  when  the  Constitution  of  the  United  States  was  founded, 
it  was  a  settled  rule  of  the  common  law  that,  in  criminal  as 
well  as  in  civil  cases,  the  court  decided  the  law,  and  the  jury 
the  facts;  and  it  can  not  be  doubted  that  this  must  have  an  im- 
portant effect  in  determining  what  is  meant  by  the  Constitu- 
tion when  it  adopts  a  trial  b}"^  jury." 

That  eminent  jurist,  whose  retirement  from  judicial  station 
has  never  ceased  to  be  a  matter  of  deep  regret  to  the  bench 
and  bar  of  this  country,  closed  his  great  opinion  with  an  ex- 
pression of  a  firm  conviction  that,  under  the  Constitution  of 
the  United  States,  juries  in  criminal  cases  have  not  the  right 
to  decide  any  question  of  law,  and  that,  in  rendering  a  general 
verdict,  their  duty  and  their  oath  require  them  to  apply  to  the 
facts,  as  they  find  them,  the  law  given  to  them  by  the  court. 
And  in  so  declaring  he  subtantially  repeated  what  Chief 
Justice  Marshall  had  said  in  Burr's  Case. 

In  U.  S.  V.  Gi'eathouse,  4  Sawy.  457,  464,  Fed.  Cas.  No. 
15,254,  which  was  an  indictment  for  treason,  Mr.  Justice  Field 
said :  *'  There  prevails  a  very  general,  but  an  erroneous, 
opinion  tiiat  in  all  criminal  cases  the  jury  are  the  judges  as 
well  of  the  law  as  of  the  fact;  that  is,  that  they  have  the  right 
to  disregard  the  law  as  laid  down  by  the  court,  and  to  follow 
their  own  notions  on  the  subject.  Such  is  not  the  right  of  the 
jury."  "  It  is  their  duty  to  take  the  law  from  the  court,  and 
apply  it  to  the  facts  of  the  case.  It  is  the  province  of  the 
court,  and  of  the  court  alone,  to  determine  all  questions  of  laAV 
arising  in  the  progress  of  a  trial;  and  it  is  the  province  of  the 
jury  to  pass  upon  the  evidence,  and  determine  all  contested 
questions  of  fact.  The  responsibility  of  deciding  correctly  as 
to  the  law  rests  solely  with  the  court,  and  the  responsibility 
of  finding  correctly  the  facts  rests  solely  with  the  jury." 

These  principles  were  applied  by  Judge  Shipman  in  U.  S.  v. 
Riley,  5  Blatchf.  204,  Fed.  Cas." No.  16,164,  and  by  Judge 
Cranch,  upon  an  extended  review  of  the  authorities,  in  Stet- 
tinius  V.  U.  S.,  5  Cranch  C.  C.  573,  Fed.  Cas.  No.  13,387.  They 
were  also  applied  by  Judge  Jackson,  in  the  district  oi  West  Vir- 
18 


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101 


AMERICAN  CRIMINAL  REPORTS. 


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ginia,  in  C^.  S.  v.  Keller,  19  Fed.  633,  in  which  case  it  was  said 
that,  although  an  acquittal  in  a  criminal  case  was  final,  even 
if  the  jury  arbitrarily  disregarded  the  instructions  of  the  court 
on  the  law  of  the  case,  a  jury,  in  order  to  discharge  its  whole 
duty,  must  take  the  law  from  the  court  and  apply  it  to  the 
facts  of  the  case. 

Turning,  now,  to  cases  in  the  State  courts,  we  find  that  in 
Com.  V.  Porter,  10  Mete.  263,  276,  the  Supreme  Judicial  Court 
of  Massachusetts,  speaking  by  Chief  Justice  Shaw,  delivering 
the  unanimous  judgment  of  the  court,  composed  of  himself  and 
Justices  Wilde,  Dewey  and  Hubbard,  held  that  it  was  a  well 
settled  principle,  lying  at  the  foundation  of  jury  trials,  ad- 
mitted and  recognized  ever  since  jury  trial  had  been  adopted 
as  an  established  and  settled  mode  of  proceeding  in  courts  of 
justice,  that  it  was  the  proper  province  and  duty  of  judges  to 
consider  and  decide  all  questions  of  law,  and  the  proper  prov- 
ince and  duty  of  the  jury  to  decide  all  questions  of  fact.  In 
the  same  case,  the  court,  observing  that  the  safety,  eiiiciency 
and  purity  of  jury  trial  depend  upon  the  steady  maintenance 
and  practical  application  of  this  principle,  and  adverting  to 
the  fact  that  a  jury,  in  rendering  a  general  verdict,  must  neces- 
sarily pass  upon  the  whole  issue,  compounded  of  the  law  and 
of  the  fact,  and  thus  incidentally  pass  on  questions  of  law, 
said :  "  It  is  the  duty  of  the  court  to  instruct  the  jury  on  all 
questions  of  law  which  appear  to  arise  in  the  cause,  and  also 
upon  all  questions  pertinent  to  the  issue,  upon  which  either 
party  may  request  the  direction  of  the  court  upon  matters  of 
law.  And  it  is  the  duty  of  the  jury  to  receive  the  law  from 
the  court,  and  to  conform  their  judgment  and  decision  to  such 
instructions,  as  far  as  they  understand  them,  in  applying  the 
lav/  to  the  facts  to  be  found  by  them;  and,  it  is  not  within  the 
legitimate  province  of  the  jury  to  revise,  reconsider  or  decide 
contrary  to  such  opinion  or  direction  of  the  court  in  matter  of 
law." 

Perhaps  the  fullest  examination  of  the  question  upon  prin- 
ciple, as  well  as  upon  authority,  to  be  found  in  the  decisions 
of  any  State  court,  was  made  in  Com.  v.  Anthes,  5  Gray,  185, 
193,  206,  208,  218,  where  Chief  Justice  Shaw,  speaking  for  a 
majority  of  the  court,  said  that  the  true  theory  and  funda- 
mental principle  of  the  common  law,  both  in  its  civil  and  crim- 
inal departments,  was  that  the  judges  should  adjudicate  finally 


8PAUF  ET  AL.  v.  UNITED  STATES. 


105 


upon  the  whole  question  of  law,  and  the  jiny  upon  the  whole 
question  of  fact. 

Considering,  in  the  liglit  of  the  authorities,  the  grounds  upon 
which  a  verdict  of  guilty  or  not  guilty,  in  a  criminal  case,  was 
held,  at  common  law,  to  be  conclusive,  he  observed  that  though 
the  jury  had  the  power  they  had  not  the  right  to  decide,  that 
is,  to  adjudicate,  on  both  law  and  evidence.  He  said  :  "  The 
result  of  these  several  rules  and  principles  is  that,  in  practice, 
the  verdict  of  a  jury,  both  upon  the  law  and  the  fact,  is  con- 
clusive; because,  from  the  nature  of  the  proceeding,  there  is  no 
judi<;ial  power  by  which  the  conclusion  of  law  thus  brought 
upon  the  record  by  that  verdict  can  be  reversed,  set  aside,  or 
inquired  into.  A  general  verdict,  either  of  conviction  or 
acquittal,  does  embody  and  declare  the  result  of  both  the  law 
and  the  fact,  and  there  is  no  mode  of  separating  them  on  the 
record  so  as  to  ascertain  whether  the  jury  passed  their  judg- 
ment on  the  law,  or  only  on  the  evidence.  The  law  authorized 
them  to  adjudicate  definitively  on  the  evidence;  the  law  pre- 
sumes that  they  acted  upon  correct  rules  of  law  given  them 
by  the  judge.  The  verdict,  therefore,  stands  conclusive  and 
unquestionable  in  point  both  of  law  and  fact.  In  a  certain 
limited  sense,  therefore,  it  may  be  said  that  the  jury  have  a 
power  and  a  legal  right  to  pass  upon  both  the  law  and  the 
fact.  And  this  is  sufficient  to  account  for  many  and  most  of 
the  dieta  in  which  the  proposition  is  stated.  But  it  would  be 
more  accurate  to  state  that  it  is  the  right  of  the  jury  to  return 
a  general  verdict;  this  draws  after  it,  as  a  necessary  conse- 
quence, that  they  incidentally  pass  upon  the  law.  But  here 
again,  is  the  question,  what  is  intended  by  *  passing  upon  the 
law  ? '  I  think  it  is  by  embracing  it  in  their  verdict,  and  thus 
bringing  it  upon  the  record,  with  their  finding  of  the  facts. 
But  does  it  follow  that  they  may  rightfully,  and  by  authority 
of  the  common  law,  by  which  all  are  conscientiously  bound  to 
govern  their  conduct,  proceed  upon  the  same  grounds  and 
principles  in  the  one  case  as  the  other  ?  What  the  jury  have 
a  right  to  do,  and  what  are  the  grounds  and  principles  upon 
which  they  are  in  duty  and  conscience  bound  to  act  and 
govern  themselves  in  the  exercise  of  that  right,  are  two  very 
distinct  questions.  The  latter  is  the  one  we  have  to  deal  with. 
Suppose  they  have  a  right  to  find  a  general  verdict,  and  by 
that  verdict  to  conclude  the  prosecutor  in  the  matter  of  law, 


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196 


AMERICAN  CRIMINAL  REPORTS. 


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sHll  it  is  an  open  and  very  different  question  whether,  in  rnnk- 
ing  up  that  verdict  and  thereby  embracing  the  law,  they  have 
the  same  right  to  exercise  their  own  reason  and  judgment, 
against  the  statement  of  the  law  by  the  judge,  to  adjudicate 
on  the  law,  as  unquestionably  they  have  on  the  fact.  The 
alTirmative  of  this  proposition  is  maintained  by  the  defendant 
in  this  case,  and  by  others  in  many  of  the  cases  before  us.  If 
I  am  right  in  the  assumption  that  the  judge  is  to  adjudge  the 
law,  and  the  jury  the  fact,  only,  it  furnishes  the  answer  to 
this  question,  to  what  extent  the  jury  adjudicate  the  law;  and 
it  is  that  they  receive  authoritative  directions  from  the  court, 
and  act  in  conformity  with  them,  though  by  their  verdict  they 
thus  embrace  the  law  with  the  fact,  which  they  may  right- 
fully adjudicate." 

Alluding  to  the  history  of  this  question  in  England,  and  par- 
ticularly, as  did  Mr.  Justice  Curtis,  to  the  controversy  in  Kiny 
V.  Dean  of  St.  Asaph,  3  Term  R.  428,  note,  and  which  resulted 
in  the  passage  by  Parliament,  after  the  separation  of  this  coun- 
try from  Great  Britain,  of  the  Libel  Act  (St.  32  Geo.  III.),  and 
observing  that  both  parties  to  that  controversy  assumed  the 
force  and  existence  of  the  rule  as  the  ancient  rule  of  the  com- 
mon law,  the  court  said :  "  The  court  and  high  prerogative 
party  say  judges  answer  to  the  law,  and  jurors  to  the  fact;  the 
question  of  guilty  or  not,  in  the  peculiar  form  of  a  criminal, 
prosecution  for  libel,  after  the  jury  have  found  the  fact  of  pub- 
lication and  truth  of  the  innuendoes,  is  a  question  of  law,  and 
therefore  must  be  declared  exclusively  by  the  court.  The 
popular  party,  assuming  the  same  major  proposition,  say  the 
question  of  guilty  or  not  is  a  question  of  fact,  and  can  be  found 
only  by  the  jury.  It  appears  to  me,  therefore,  as  I  stated  on 
the  outset,  that  considering  the  course  of  the  controversy,  the 
earnestness  and  ability  with  which  every  point  was  contested, 
and  the  thorough  examination  of  the  ancient  authorities,  this 
concurrence  of  views  on  the  point  in  question  affords  strong 
proof  that,  up  to  the  period  of  our  separation  from  England, 
the  fundamental  definition  of  trials  by  jury  depended  on  the 
universal  maxim,  without  an  exception,  ^Ad  quaestionem  fadi 
respondent  juratores,  ad  quaestionem  juris  respondent  ju- 
dices?  " 

The  Anthes  case,  it  may  be  ol>strved,  arose  under  a  statute 
enacted  in  1855,  after  the  decision  in  the  Porter  case.    But  the 


SPARF  ET  AL.  v.  UNITED  STATES. 


197 


court  hold  that  that  statute  did  not  confer  upon  juries,  in 
criminal  trials,  the  power  of  determining  questions  of  law 
aLMinst  the  instructions  of  the  court.  And  the  Chief  Justice 
gaid — Justices  Metcalf  and  Merrick  concurring — that,  if  the 
statute  could  be  so  interpreted  as  to  prescribe  that  the  jury, 
consistently  with  their  duty,  may  decide  the  law  upon  their 
ju<lgment  contrary  to  the  decision  and  instruction  of  the  court, 
before  whom  the  trial  was  had,  such  enactment  would  be 
beyond  the  scoi>e  of  legitimate  legislative  power,  repugnant  to 
the  Constitution,  and,  of  course,  inoperative  and  void.  See 
also,  Com.  v.  liock,  10  Gray,  4,  whore  the  doctrines  announced 
in  Com.  v.  Anthes  were  re-affirmed,  no  one  of  the  members  of 
the  court  expressing  a  dissent. 

This  question  was  also  fully  considered  in  Monteev.  Coin.,S 
J.  J.  Marsh.  132, 149, 151,  in  which  case  Chief  Justice  Robert-  • 
son  said  :  "  The  Circuit  Judge  would  be  a  cipher,  and  a  criminal 
trial  before  him  a  farce,  if  he  had  no  right  to  decide  all  ques- 
tions of  law  which  might  arise  in  the  progress  of  the  case.  The 
jury  are  the  exclusive  judges  of  the  facts.  In  this  particular 
they  can  not  be  controlled,  and  ought  not  to  be  instructed,  by 
the  court.  They  are  also,  ex  necessitate,  the  ultimate  judges, 
in  one  respect,  of  the  law.  If  they  acquit,  the  judge  can  not 
grant  anew  trial,  how  much  soever  they  have  misconceived  or 
disregarded  the  law."  "If  the  court  had  no  right  to  decide  on 
the  law,  error,  confusion,  uncertainty,  and  licentiousness  would 
characterize  the  criminal  trials;  and  the  safety  of  the  accused 
might  be  as  much  endangered  as  the  stability  of  public  justice 
would  certainly  be."  In  Pieree  v.  State,  13  N.  H.  536,  554,  it 
was  held  to  be  inconsistent  with  the  spirit  of  the  Constitution 
that  questions  of  law,  and,  still  less,  questions  of  constitutional 
law,  should  be  decided  by  the  verdict  of  the  jury,  contrary  to 
the  instructions  of  the  court. 

In  Buffy  V.  Peojile,  26  N.  Y.  588, 592,  Judge  Selden,  speaking 
for  the  Court  of  Appeals  of  New  York,  said :  "  The  unquestion- 
able power  of  juries  to  find  general  verdicts,  involving  both 
law  and  fact,  furnishes  the  foundation  for  the  opinion  that 
they  are  judges  of  the  law  as  well  as  of  the  facts,  and  gives 
some  plausibility  to  that  opinion.  They  are  not,  however, 
compelled  to  decide  legal  questions,  having  the  right  to  find 
special  verdicts,  giving  the  facts,  and  leaving  the  legal  con- 
clusions which  result  from   such  facts  to  the  court.    When 


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198 


AMERICAN  CRIMINAL  REPORTS. 


they  find  general  verdicts,  I  think  it  is  their  duty  to  be  ^ov- 
erned  by  the  instructions  of  the  court  as  to  all  legal  questions 
involved  in  such  verdicts.  They  have  the  power  to  do  other- 
wise, but  the  exercise  of  such  power  can  not  be  regarded  as 
rightful,  although  the  law  has  provided  no  means,  in  criminal 
cases,  ot  reviewing  their  decisions,  whether  of  law  or  fact,  or 
of  ascertaining  the  grounds  upon  which  their  verdicts  are 
based."  See,  also,  Peojfle  v.  F'mnegan,  1  Parker  Cr.  R.  147, 
152;  Saffordv.  People,  Id.  474,  480. 

So,  in  Hamilton  v.  People,  29  Mich.  173,  192,  Mr.  Justice 
Campbell,  as  the  organ  of  the  court,  said :  "  We  understand 
the  uniform  practice  and  the  decided  weight  of  opinion  to 
require  that  the  judge  give  his  views  of  the  law  to  the  jury  as 
authority,  and  not  as  a  matter  to  be  submitted  to  their  review." 
And  in  People  v.  Anderson,  44  Cal.  65, 70 :  "  In  this  State  it  is  so 
Avell  settled  as  no  longertobe  open  to  debate  that  it  is  the  duty 
of  a  jury,  in  a  criminal  case,  to  take  the  law  from  the  court." 

The  principle  was  accurately  stated  by  Chief  Justice  Ames, 
speaking  for  the  Supreme  Court  of  Rhode  Island,  when  he 
said :  "  The  line  between  the  duties  of  the  court  and  jury  in 
the  trial  of  causes  at  law,  both  civil  and  criminal,  is  perfectly 
well  defined;  and  the  rigid  observance  of  it  is  of  the  last 
importance  to  the  administration  of  systematic  justice. 
While,  on  the  one  hand,  the  jury  are  the  sole,  ultimate 
judges  of  the  facts,  they  are,  on  the  other,  to  receive  the  law 
applicable  to  the  case  before  them  solely  from  the  publicly 
given  ^'nstructions  of  the  court.  In  this  way,  court  and  jury 
are  made  responsible,  each  in  its  appropriate  department,  for 
the  part  taken  by  each  in  the  trial  and  decision  of  causes;  and 
in  this  way  alone  can  errors  of  fact  and  errors  of  law  be  traced, 
for  the  purpose  of  correction,  to  their  proper  sources.  If  the 
jury  can  receive  the  law  of  a  case  on  trial  in  any  other  mode 
than  from  the  instructions  of  the  court,  given  in  the  presence 
of  parties  and  counsel,  how  are  their  errors  of  law,  with  any 
certainty,  to  be  detected,  and  how  with  any  certainty,  there- 
fore, to  be  corrected  ?  It  is  a  statute  right  of  parties 
here — follov/ing,  too,  the  ancient  course  of  the  common 
law — to  have  the  law  given  by  the  court,  in  their  presence,  to 
the  jury,  to  guide  their  decision,  in  order  that  every  error  in 
matter  of  law  may  be  known  and  corrected."  State  v.  Smith, 
5  R.  I.  33,  34. 


I 


SPARF  ET  AL.  v.  UNITED  STATES. 


109 


III  Pennsylvania,  in  the  case  of  Com.  v.  Sherry  (reported  in 
the  appendix  to  Wharton's  treatise  on  Homicide),  Judge 
Bogers,  a  jurist  of  high  reputation,  thus  charged  tiie  jury  in  a 
cai)ital  case  :  "  You  are,  it  is  true,  judges  in  a  criminal  case, 
in  one  sense,  of  both  law  and  fact,  for  your  verdict,  as  in'  civil 
cases,  must  ]mss  on  law  and  fact  together.  If  you  acquit,  you 
interpose  a  iinal  bar  to  a  second  prosecution,  no  matter  how 
entirely  your  verdict  may  have  been  in  opposition  to  the  views 
expressed  by  the  court.  *  *  *  It  is  important  for  you  to 
keep  this  distinction  in  mind,  remembering  that,  while  you 
have  the  physical  power,  by  an  acquittal,  to  discharge  a  de- 
fendant from  further  prosecution,  you  have  no  moral  power  to 
do  so,  against  the  law  laid  down  by  the  court.  *  *  *  For 
your  part,  your  duty  is  to  receive  the  law,  for  the  purposes  of 
this  trial,  from  the  court.  If  an  error,  injurious  to  the  prisoner, 
occurs,  it  will  be  rectified  by  the  revision  of  the  court  in  banc. 
But  an  error  resulting  from  either  a  conviction  or  acquittal, 
against  the  law,  can  never  be  rectified.  In  the  first  case,  an 
unnecessary  stigma  is  aifixed  to  the  character  of  a  man  who 
was  not  guilty  of  the  offense  with  which  he  is  charged.  In 
the  second  case,  a  serious  injury  is  affected  by  the  arbitrary 
and  irremediable  dischar^  of  a  guilty  man.  You  will  see 
from  these  considerations  the  great  importance  of  the  preser- 
vation, in  criminal  as  well  as  in  civil  cases,  of  the  maxim  that 
the  law  belongs  to  the  cou.-t,  and  the  facts  to  the  jury." 
About  the  same  time.  Judge  S  >rgeant  chai'ged  a  jury :  "  The 
point,  if  you  believe  the  evidence  on  both  sides,  is  one  of  law, 
on  which  it  is  your  duty  to  receive  the  instructions  of  the 
court.  If  3'ou  believe  the  evidence  in  the  whole  case,  you 
must  find  thedofendant  guilty."  Com.  v.  Van  Sickle,  Brightly 
(Pa.)  73. 

To  the  same  effect,  substantially,  was  the  language  of  Chief 
Justice  Gibson,  who,  when  closing  a  charge  in  a  capital  case, 
said :  "  If  the  evidence  on  these  points  fail  the  prisoner,  the 
conclusion  of  his  guilt  will  be  irresistible,  and  it  will  be  your 
duty  to  draw  it."  Com.  v.  Harman,  4  Pa.  St.  269.  In  a  more 
recent  case  {Kane  v.  Com.,  89  Pa.  St.  522),  Sharswood,  C.  J., 
said  that  the  power  of  the  jury  to  judge  of  the  law  in  a  crim- 
inal case  was  one  of  the  most  valuable  securities  guaranteed  by 
the  bill  of  rights  of  Pennsylvania.  But  in  a  later  case,  Nich- 
olson V.  Com.,  y6  Pa.  St.  505,  it  is  said :  "  The  court  had  an  un- 


i  '■''' 

I  h 

h        'i 

i^mSm 

>  7<l 


i- 


InKi^l 


'■  ^1 


I.  m 


200 


AMERICAN  CRIMINAL  REPORTS. 


doubted  right  to  instruct  the  jury  as.  to  the  law,  and  to  warn 
them  as  they  did  against  finding  contrary  to  it.  This  is  very 
different  from  telling  them  that  they  must  find  the  defendant 
guilty,  which  is  what  is  meant  by  a  binding  instruction  in 
criminal  cases."  In  C0771.  v.  Mcllannsy  143  Pa.  St.  64,  85,  it 
was  adjudged  that  the  statement  by  the  court  was  the  best 
evidence  of  the  law  within  the  reach  of  the  jury,  and  that  the 
jury  should  be  guided  by  what  the  court  said  as  to  the  law. 
And  this  view  the  court,  speaking  by  Chief  Justice  Paxson, 
said  was  in  harmony  with  Kane  v.  Com. 

The  question  has  recently  been  examined  by  the  Supreme 
Court  of  Vermont,  and  after  an  elaborate  review  of  the  authori- 
ties, English  and  American,  that  court,  by  a  unanimous  judg- 
ment— overruling  State  v.  Groteau,  23  Vt.  14,  and  all  the  pre- 
vious cases  which  had  followed  that  case — said  :  "  We  are  thus 
led  to  the  conclusion  that  the  doctrine  that  jurors  are  the 
judges  of  the  law  in  criminal  cases  is  untenable;  that  it  is  con- 
trary to  the  fundamental  maxims  of  the  common  law  from 
which  it  is  claimed  to  take  its  origin;  contrary  to  the  uniform 
practice  and  decisions  of  the  courts  of  Great  Britain,  where  our 
jury  system  had  its  beginning,  and  where  it  matured;  contrary 
to  the  great  weight  of  authority  in  this  country;  contrary  to 
the  spirit  and  meaning  of  the  Constitution  of  the  United  States; 
repugnant  to  the  Constitution  of  this  State;  repugnant  to  our 
statute  relative  to  the  reservation  of  questions  of  law  in  crim- 
inal cases,  and  passing  the  same  to  the  Supreme  Court  for  final 
decision."    State  v.  Burpee,  65  Vt.  1,  34. 

These  principles  are  supported  by  a  very  large  number  of 
adjudications,  as  will  be  seen  by  an  examination  of  the  cases 
cited  in  margin.' 


>  People  V.  Wright,  93  Cal.  564;  Broion  v.  Com. ,  87  Va.  215;  People  v.  Barry, 
90Cal.  41;  People  r.  Madden,  76  Cal.  521;  State  v.  Jeandell,  5  Har.  (Del.) 
475;  State  v.  Wright,  53  Me.  338;  Com.  v.  Van  Tuyl,  1  Mete.  (Ky.)  1;  Mont- 
gomery v.  State,  11  Ohio,  427;  Adams  v.  State,  29  Ohio  St.  413;  Rohbina  v. 
State,  8  Ohio  St.  131,  167;  Williama  v.  State,  32  Miss.  389,  396;  Pleasant  v. 
State,  18  Ark.  860,  872;  Robinson  v.  State,  66  Ga.  517;  Brown  v.  State,  40 
Ga.  689,  695;  Hunt  v.  State,  81  Ga.  140;  State  v.  Drawdy,  14  Rich.  Law,  87; 
Nets  V.  State,  2  Tex.  280;  Myers  v.  State,  33  Tex.  525;  State  v.  Jones,  64 
Mo.  391;  Hardy  v.  State,  7  Mo.  607;  State  v.  Elwood,  73  N.  C.  189;  State  v. 
IdcLain,  104  N.  C.  894,  People  v.  Neumann,  85  Mich.  98;  State  v.  Johnson, 
80  La.  Ann.  1.  p.  904;  State  v.  Ford,  37  La.  Ann.  443,  465;  Fisher  v. 
Railway  Co.,  181  la.  St.  292,  297;  Railway  Co.  v.  Hutchinson,  40  Kan.  51. 


SPARF  ET  AL.  v.  UNITED  STATES. 


201 


To  tho  same  purport  are  the  text  writers.  "In  theory; 
therefore,"  says  Judj^e  Cooley,  "  the  rule  of  law  would  seem 
to  be  that  it  is  the  duty  of  the  jury  to  receive  and  follow  the 
law  as  delivered  to  them  by  the  court;  and  such  is  the  clear 
weight  of  authority."  Const.  Lira.  323,  324.  Greenleaf,  in 
his  treatise  on  the  law  of  evidence,  says:  "  In  trials  by  jury, 
it  is  the  province  of  the  presiding  judge  to  determine  all  ques- 
tions on  the  admissibility  of  evidence  to  the  jur}'^,  as  well  as 
to  instruct  them  in  the  rules  of  law  by  which  it  is  to  be 
vveiHied.  Whether  there  be  any  evidence  or  not  is  a  question 
for  the  judge;  whether  it  is  sufficient  evidence  is  a  question 
for  the  jury."  "  Where  the  question  is  mixed,  consisting  of 
law  and  fact,  so  intimately  blended  as  not  to  be  easily  suscep- 
tible of  separate  decision,  it  is  submitted  to  the  jury,  who  are 
first  instructed  by  the  judge  in  the  principles  and  rules  of  law 
by  which  they  are  to  be  governed  in  finding  a  verdict,  and 
these  instructions  they  are  bound  to  follow."  Volume  1,  §  49. 
Starkie,  in  his  treatise  on  Evidence,  observes :  "  Where  the 
jury  find  a  general  verdict,  they  are  bound  to  apply  the  law 
as  delivered  by  the  court,  in  criminal  as  well  as  civil  cases." 
Page  816.  So,  in  PhiUips  on  Evidence:  "They  (the  jury) 
are  not,  in  general,  either  in  civil  or  criminal  cases,  judges  of 
the  law.  They  are  bound  to  find  the  law  as  it  is  propounded 
to  them  by  the  court.  They  may,  indeed,  find  a  general  ver- 
dict, including  both  law  and  fact;  but,  if  in  such  verdict,  they 
find  the  law  contrary  to  the  instructions  of  the  court,  they 
thereby  violate  their  oath."  Cowen  &  Hill's  Notes  (3d  Ed.), 
p.  2, 1501.  See,  also,  1  Tayl.,  Ev.  §§  21-24;  1  Best,  Ev.  (Mor- 
gan's Ed.),  §  82. 

In  1  Cr.  Law  Mag.,  51,  will  be  found  a  valuable  note  to  the 
case  of  Kane  v.  Com.,  prepared  by  Mr.  Wharton,  in  which  the 
authorities  are  fully  examined,  and  in  which  he  says :  "  It 
would  be  absurd  to  say  that  the  determination  of  the  law  be- 
longs to  the  jury,  not  court,  if  the  court  has  power  to  set  aside 
that  which  the  jury  determines.  We  must  hold,  to  enable  us 
to  avoid  inconsistency,  that,  subject  to  the  qualification  that 
all  acquittals  are  final,  the  law  in  criminal  cases  is  to  be 
determined  by  the  court.  In  this  way  we  have  our  liberties 
and  rights  determined,  not  by  an  irresponsible,  but  by  a  re- 
sponsible, tribunal;  not  by  a  tribunal  ignorant  of  the  law,  bu* 
by  a  tribunal  trained  to  and  disciplined  by  the  law;  not  by  an 


U ''       I 


i        ! 

s 


4"  >*J     -Mi 


202 


AMERICAN  CRIMINAL  REPORTS. 


irreversible  tribunal,  but  by  a  reversible  tribunal;  not  by  a  tri- 
bunal which  makes  its  own  law,  but  by  a  tribunal  that  obeys 
the  law  as  made.  In  this  way  we  maintain  two  fundamental 
maxims.  The  first  is,  that  while  to  facts  answer  juries,  to  the 
law  answers  the  court.  The  second,  which  is  still  more  im- 
portant, is  ^Nullum  crimen,  nullapoena,  sine  leye.^  Unless  there 
be  a  violation  of  law  pre-announced,  and  this  by  a  constant  and 
responsible  tribunal,  there  is  no  crime,  and  can  be  no  punish- 
ment." 1  Cr.  Law  Mag.  56.  The  same  author,  in  his  treatise 
on  Pleading  and  Practice,  concludes  his  examination  of  the 
question  in  these  words:  "The  conclusion  we  must  there- 
fore accept  is  that  the  jury  are  no  more  judges  of  law  in  crim- 
inal than  in  civil  cases,  with  the  qualification  that,  owing  to 
the  peculiar  doctrine  of  autrefois  acquit,  a  criminal  acquitted 
can  not  be  overhauled  by  the  court.  In  the  Federal  courts 
such  is  now  the  established  rule."    Sections  809,  810. 

Forsyth,  in  his  History  of  Trial  by  Jury — a  work  of  merit — 
discusses  the  doctrine,  advanced  by  some,  that  the  jury  were 
entitled,  in  all  cases,  where  no  special  pleas  have  been  put  on 
the  record,  to  give  a  general  verdict,  according  to  their  own 
views  of  the  law,  in  criminal  as  well  as  in  civil  cases.  He 
says :  "  It  is  impossible  to  uphold  the  doctrine.  It  is  founded 
on  a  confusion  between  the  ideas  of  power  and  right."  "  In- 
deed, it  is  difficult  to  understand  how  any  one,  acquainted  with 
the  principles  and  settled  practice  of  the  English  law,  can  as- 
sert that  it  sanctions  the  doctrine  which  is  here  combated." 
Again :  "  The  distinction  between  the  province  of  the  judge 
and  that  of  the  jury  is,  in  the  English  law,  clearly  defined,  and 
observed  with  jealous  accuracy.  The  jury  must,  in  all  cases, 
determine  the  value  and  effect  of  evidence  which  is  submitted 
to  them.  They  must  decide  what  degree  of  credit  is  to  be 
given  to  a  witness,  and  hold  the  balance  between  conflicting 
probabilities.  The  law  throws  upon  them  the  whole  respon- 
sibility of  ascertaining  facts  in  dispute,  and  the  judge  does  not 
attempt  to  interfere  with  the  exercise  of  their  unfettered  dis- 
cretion in  this  respect.  But,  on  the  other  hand,  the  judge  has 
his  peculiar  duty  in  the  conduct  of  a  trial.  He  must  deter- 
mine whether  the  kind  of  evidence  offered  is  such  as  ought,  or 
ought  not,  to  be  submitted  to  the  jury,  and  what  liabilities  it 
imposes.  When  any  questions  of  law  arise,  he  alone  deter- 
mines them,  and  their  consideration  is  absolutely  withdrawn 


SPARF  ET  AL.  v.  UNITED  STATES. 


203 


from  the  jury,  who  must,  in  such  cases,  follow  the  direction 
of  the  judge;  or,  if  they  perversely  refuse  to  do  so,  their  ver- 
dict (in  civil  cases)  will  be  set  aside,  and  a  new  trial  granted." 
Pages  235,  236  (^Morgan's  Ed.);  London  Ed.,  1852,  pp.  261, 262, 
282. 

Worthington,  in  his  Inquiry  into  the  Power  of  Juries,  an 
English  work  published  in  1825,  and  often  cited  in  the  ad- 
judged cases,  says : 

"  Were  they  (the  jury)  permitted  to  decide  the  law,  the 
principles  of  justice  wonid  be  subverted;  the  law  would  become 
as  variable  as  the  prejudices,  the  inclinations  and  the  passions 
of  men.  If  they  could  legally  decide  upon  questions  of  law, 
their  decision  must,  of  necessity,  be  final  and  conclusive,  which 
would  involve  an  absurdity  in  all  judicial  proceedings,  and 
would  be  contradictory  to  the  fundamental  principles  of  our 
jurisprudence."  "  The  jury,  when  called  upon  to  decide  facts 
which  are  complicated  with  law,  are  therefore  constitutionally, 
and  must  be,  from  the  nature  and  intention  of  the  institution, 
bound  to  seek  and  to  obey  the  direction  of  the  judge  with  re- 
spect to  the  law.  It  becomes  their  duty  to  apply  to  the  law 
thus  explained  to  them  the  facts  (which  it  is  their  exclusive 
province  to  find),  and  thus  they  deliver  a  verdict  compounded 
of  law  and  fact,  but  they  do  not  determine  or  decide  upon  the 
law  in  any  case."    Pages  193, 194. 

Judge  Thompson,  in  his  work  on  Trials  (sections  1016, 1017), 
thus  states  the  principles :  "  The  judge  decides  questions  of 
law;  the  ju.y,  questions  of  fact."  So,  in  Protfat,  Jury,  §375  : 
"  The  preponderance  of  judicial  authority  in  this  country  is  in 
favor  of  the  doctrine  that  the  jury  should  take  the  law  from 
the  court,  and  apply  it  to  the  evidence  under  its  direction." 

The  language  of  some  judges  and  statesmen  in  the  early  his- 
tory of  the  country,  implying  that  the  jury  were  entitled  to 
disregard  the  law  as  expounded  by  the  court,  is,  perhaps,  to  be 
explained  by  the  fact  that  "  in  many  of  the  States  the  arbitrary 
temper  of  the  colonial  judges,  holding  office  directly  from  the 
crown,  had  made  the  independence  of  the  jury,  in  law  as  well 
as  in  fact,  of  much  popular  importance."  Whart.  Cr.  PI.  (8th 
Ed.),  §  806;   Williams  v.  State,  32  Miss.  389,  396. 

Notwithstanding  the  declarations  of  eminent  jurists  and  of 
numerous  courts,  as  disclosed  in  the  authorities  cited,  it  is 
sometimes  confidently  asserted  that  they  all  erred  when  ad- 


-if;/;,    A' 


204 


AMERICAN  CRIMINAL  REPORTS. 


'', 


w  ii  ii 


judging  that  the  rule  at  common  law  was  that  the  jury,  in 
criminal  cases,  could  not  properly  disregard  the  law  as  given 
by  the  court.  We  are  of  opinion  that  the  law  in  England  at 
the  date  of  our  separation  from  that  country  was  as  declared 
in  the  authorities  we  have  cited.  The  contrary  view  rests,  as 
we  think,  in  large  part,  upon  expressions  of  certain  judges  and 
writers,  enforcing  the  principle  that  when  the  question  is  com- 
pounded of  law  and  fact  a  general  verdict,  ex  necessitate,  dis- 
poses of  the  case  in  hand,  both  as  to  law  and  fact.  This  is  what 
Lord  Soraers  meant  when  he  said  in  his  essay  on  "  The  Secu- 
rity of  Englishmen's  Lives,  or  the  Trust,  Power  and  Duty  of 
the  Grand  Juries  of  England,"  that  jurors  only  "are  the  judges 
from  whose  sentence  the  indicted  are  to  expect  life  or  death," 
and  that,  "  by  finding  guilty  or  not  guilty,  they  do  compli- 
cately  resolve  both  law  and  fact."  In  the  speeches  of  many 
statesmen,  and  in  the  utterances  of  many  jurists,  will  bo  found 
the  general  observation  that  when  law  and  fact  are  *'  blended  " 
their  combined  consideration  is  for  the  jury,  and  a  verdict  of 
guilty  or  not  guilty  will  determine  both  for  the  particular  case 
in  hand.  But  this  falls  far  short  of  the  contention  that  the  jury, 
in  applying  the  law  to  the  facts,  may  rightfully  refuse  to  act 
upon  the  principles  of  law  announced  by  the  court. 

It  is  to  be  observed  that  those  who  have  maintained  the 
broad  position  that  a  jury  may,  of  right,  disregard  the  law  as 
declared  by  the  court,  cite  the  judgment  of  Chief  Justice 
Vaughan  in  Bushell's  case,  Vaughan,  135.  In  that  case  the 
accused  were  acquitted  by  a  general  verdict,  in  opposition,  as 
it  was  charged,  to  the  directions  of  the  court.  And  the  ques- 
tion presented  upon  habeas  corpus  was  whether,  for  so  doing, 
^Jiey  were  subject  to  be  fined,  and  committed  to  prison  until 
ti's  fine  was  paid.  Upon  a  careful  examination  of  the  elabo- 
ate  opinion  in  that  case,  it  will  become  clear  that  the  funda- 
mental proposition  decided  was  that  in  view  of  the  different 
functions  of  court  and  jury,  and  because  a  general  verdict,  of 
necessity,  resolves  "  both  law  and  fact  complicately,  and  not 
the  fact  by  itself,"  it  could  never  be  proved,  where  the  case 
went  to  the  jury  upon  both  law  and  facts,  that  the  jurors  did 
not  proceed  upon  their  view  of  the  evidence.  Chief  Justice 
Vaughan  said  that  the  words  in  the  warrant,  "  that  the  jury 
did  acquit  against  the  direction  of  the  court  in  matter  of  law, 
literally  taken,  and  de  jplano,  are  insignificant,  and  not  intelli- 


8PARF  ET  AL.  v.  UNITED  STATES. 


205 


glble,  for  no  issue  can  be  joined  of  matter  in  law;  no  jury  can 
be  charged  with  the  trial  of  matter  in  l^w  barely;  no  evidence 
ever  was  or  can  be  given  to  a  jury  of  what  is  law  or  not,  nor 
no  such  oath  can  be  given  to  or  taken  by  a  jury,  to  try  matter 
in  law,  nor  no  attaint  can  lie  for  such  a  false  oath."  Id.  143. 
Touching  the  distinction  between  the  oath  of  a  witness  and 
that  of  a  juror,  he  said  :  "  A  witness  swears  but  to  what  hath 
f.illen  under  his  senses.  But  a  juryman  swears  to  what  he  can 
infer  and  conclude  from  the  testimony  of  such  witnesses,  by 
the  act  and  force  of  his  own  understanding,  to  be  the  fact  in- 
quired after,  which  differs  nothing  in  the  reason,  though  much 
in  the  punishment,  from  what  a  judge,  out  of  various  cases  con- 
sidered by  him,  infers  to  be  law  in  the  question  before  him." 
Id.  139, 142. 

In  referring  to  the  opinion  in  Bushel  I's  case,  Mr.  Justice 
Curtis  well  observed  that  it  would  be  found  that  Chief  Justice 
Vaughan  "  confines  himself  to  a  narrow,  though,  for  the  case,  a 
conclusive  line  of  argument — that,  the  general  issue  embracing 
fact  as  well  as  law,  it  can  never  be  proved  that  the  jury  believed 
the  testimony  on  which  the  fact  depended,  and  in  reference  to 
which  the  direction  was  given,  and  so  they  can  not  be  shown 
to  be  guilty  of  any  legal  misdemeanor  in  returning  a  verdict, 
though  apparently  against  the  direction  of  the  court  in  matter 
of  law."  And  this  is  the  view  of  the  opinion  in  Bushell's  case, 
expressed  by  Ilallam  in  his  Constitutional  History  of  England 
(chapter  13). 

A  similar  criticism  was  made  by  the  Supreme  Judicial  Court 
of  Massachusetts  in  the  case  of  Anthes.  (^hief  Justice  Shaw, 
after  stating  the  principles  involved  in  Bushell's  case,  said : 
"  It  may  be  remarked  that  from  the  improved  views  of  the 
nature  of  jury  trials  during  the  two  hundred  years  which  have 
elapsed  since  the  decision  of  Chief  Justice  Vaughan,  the  juror 
is  now  in  no  more  danger  of  punishment  for  giving  an  erro- 
neous judgment  in  matter  of  fact  than  a  judge  is  for  giving  an 
erroneous  judgment  in  matter  of  law.  But  his  statement 
clearly  implies  that  the  judge,  within  his  appropriate  sphere, 
is  to  act  by  the  force  of  his  reason  and  understanding,  and  by 
the  aid  of  his  knowledge  of  the  law  and  all  appropriate  means, 
to  adjudge  all  questions  of  law,  and  direct  the  jury  thereon ; 
and  in  like  manner  the  jury,  by  the  force  of  their  reason  and 
understanding,  acting  upon  all  the  competent  evidence  in  the 


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206 


AMERICAN  CRIMINAL  REP0RT3. 


case,  to  reason,  weigh  evidence,  draw  inferences,  and  adjudge 
the  question  of  fact  embraced  in  the  issue.  Again,  '  In  these 
cases  the  jury,  and  not  the  judge,  resolve  and  find  what  the 
fact  is.  Therefore,  always,  in  discreet  and  lawful  assistance 
of  the  jury,  the  judge's  direction  is  hypothetical  and  upon 
supposition,  and  not  positive  upon  coercion,  namely :  "  If  you 
find  the  fact  thus  (leaving  it  to  them  what  to  find),  then  you 
are  to  find  for  the  plaintiff;  but  if  you  find  the  fact  thus,  then 
it  is  for  the  defendant."  Vaughan,  144.'  "  "  It  is  strange," 
Chief  Justice  Shaw  felt  constrained  to  say,  "  that  the  authority 
of  Vaughan,  C.  J.,  in  this  case,  should  be  cited,  as  it  has  been,  to 
prove  that  a  juror,  in  finding  a  general  verdict,  embracing  law 
and  fact,  being  sworn  to  try  the  issue,  must  find  his  verdict 
upon  his  own  conviction  and  conscience,  relying,  in  support  of 
the  proposition,  upon  the  following  words  of  Vaughan,  C.  J., 
*  A  man  can  not  see  by  another's  eye,  nor  'lear  by  another's 
ear.  No  more  can  a  man  decide  and  infer  the  thing  to  be 
resolved  by  another's  understanding  or  reasoning.'  Id.  148." 
Had  these  words  been  applied  to  the  whole  issue  embraced  in 
a  general  verdict,  as  would  be  implied  from  the  manner  of 
referring  to  them,  they  would  have  countenanced  the  proposi- 
tion; but  thej'  are  used  expressly  to  illustrate  the  position 
that  the  jury  can  not  be  required  implicitly  to  give  a  verdict 
by  the  dictates  and  authority  of  the  judge.  "  I  refer,"  Chief 
Justice  Shaw  continued,  "  only  to  one  other  passage,  which 
serves  as  a  key  to  the  whole  judgment.  He  says :  '  That  de- 
cantatum  in  our  hooks,  Ad  quaestionem  facti  non  respondent 
judices,  ad  quaestionern  legis  non  respondent  juratores^  liter- 
ally taken,  is  true,  for  if  it  be  demanded,  what  is  the  fact  ?  the 
judge  can  not  answer;  if  it  be  asked,  what  is  the  law  in  the 
case?  the  jury  can  not  answer  it.'  Id.  149."  All  this  tends  to 
show  that  the  leading  thought  in  the  opinion  of  Chief  Justice 
Vaughan  was,  that  while  the  jury  can  not  answer  as  to  the  law, 
nor  the  court  as  to  the  fact,  a  general  verdict,  compounded  of 
law  and  fact,  of  necessity  determines  both  as  to  the  case  on 
trial. 

In  Townsend's  case,  an  ofiice  taken  by  virtue  of  a  writ  of 
mandamus,  and  decided  in  the  sixteenth  century,  the  court 
said:  "For  the  office  of  twelve  men  is  no  other  than  to 
inquire  of  matters  of  fact,  and  not  to  adjudge  what  the  law  is, 
for  that  is  the  office  of  the  court,  and  not  of  the  jury;  and  if 


I  ^i 


8PARF  ET  AL.  v.  UNITED  STATES. 


207 


they  find  the  matter  of  fact  at  large,  and  further  say  that 
thereupon  the  law  is  so,  where,  in  truth,  the  law  is  not  so, 
the  judges  shall  adjudge  according  to  the  matter  of  fact,  and 
not  according  to  the  conclusion  of  the  jury."  1  Plow,  110, 
114:.  In  Wdlion  v.  Berkely,  Id.  223,  230,  also  a  civil  case: 
"  Matters  of  fact,  being  traversed,  shall  be  tried  by  twelve  men; 
and,  if  the  plaintiff  should  take  a  traverse  here,  it  would  bo  to 
make  twelve  illiterate  men  try  a  matter  of  law,  whereof  tliey 
have  no  knowledge.  It  is  not  their  office  to  try  matters  of 
law,  but  only  to  try  matters  of  fact;  for  at  the  beginning 
of  our  law  it  was  ordained  that  matters  of  fact  should  be  tried 
by  twelve  men  of  the  country  Avhere  the  matter  arises,  and 
matters  of  law  by  twelve  judges  of  the  law,  for  which  pur- 
pose there  were  six  judges  here,  and  six  in  the  King's  Bench, 
who,  upon  matters  of  law,  used  to  assemble  together  in  a 
certain  place,  in  order  to  discuss  what  the  law  was  therein. 
So  that,  if  a  traverse  should  be  here  taken,  it  would  be  to 
make  twelve  ignorant  men  of  the  country  try  that  whereof 
they  are  not  judges,  and  which  does  not  belong  to  them  to  try." 
See,  also.  Grendon  v.  Bishop  of  London,  2  Plow.  493,  49G. 

As  early  as  1727,  Raymond,  C.  J.,  delivering  the  unanimous 
opinion  of  the  twelve  judges  of  the  King's  Bench  in  a  case  of 
murder,  said  that  the  jury  are  judges  only  of  the  fact,  and  the 
court  of  the  law.  2  Strange,  766,  773.  The  force  of  this 
language,  as  to  the  functions  of  judge  and  jury,  is  not  materi- 
ally weakened  by  the  fact  that  the  case  was  before  the  judges 
upon  a  special  verdict,  for  it  was  expressly  declared  that  jui'ors 
were  judges  only  of  the  fact. 

Within  a  few  years  after  Oneby's  case  (2  Strange,  766)  was 
determined,  in  1734,  the  case  of  King  v.  Poole,  which  was  a 
criminal  information  in  the  nature  of  a  quo  warranto,  came 
before  Lord  Hardwicke.  In  passing  upon  a  motion  for  a  new 
trial,  that  famous  judge — than  whom  there  could  be  no  higher 
authority  as  to  what  was  the  settled  law  of  England — said : 
"  The  thing  that  governs  greatly  in  this  determination  is,  that 
the  point  of  law  is  not  to  be  determined  by  juries;  juries  have 
a  power  by  law  to  determine  matters  of  fact  only;  and  it  is  of 
the  greatest  consequence  to  the  law  of  England,  and  to  the 
subject,  that  these  powers  of  the  judge  and  the  jury  are  kept 
distinct;  that  the  judge  determines  the  law,  and  the  jury  the 
fact;  and  if  ever  they  come  to  be  confounded,  it  will  prove 


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208 


AMERICAN  CRIMINAL  REPORTS. 


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the  confusion  and  destruction  of  the  law  of  England."  Cas. 
t.  Ilardw.  27. 

Upon  the  question  hero  under  examination  Mr.  Foster,  to 
■wJiose  work  Chief  Justice  Marshall  frequently  refers  in  his 
opinion  or  charge  delivered  in  Burr's  case,  says,  in  the  first 
edition  of  his  work,  which  appeared  in  1762,  and  again  in  the 
third  edition,  which  appeared  in  1792  :  "  In  every  case  where 
the  point  turneth  upon  the  question  whether  the  homicide  was 
committed  wilfully  and  maliciously,  or  under  circumstances 
justifying,  excusing  or  alleviating  the  matter  of  fact,  viz., 
whether  the  facts  alleged  by  way  of  justification,  excuse  or 
alleviation  are  true,  is  the  proper  and  only  province  of  the 
jury.  But  whether,  upon  a  supposition  of  the  truth  of  facts, 
such  homicide  be  justified,  excused  or  alleviated,  must  be  sub- 
mitted to  the  judgment  of  the  court;  for  the  construction  the 
law  putteth  upon  facts  stated  and  agreed,  or  found  by  a  jury, 
is  in  this,  as  in  all  other  cases,  undoubtedly  the  proper  province 
of  the  court.  In  cases  of  doubt  and  real  difficulty  it  is  com- 
monly recommended  to  the  jury  to  state  facts  and  circumstances 
in  a  special  verdict.  But  where  the  law  is  clear,  the  jury,  under 
the  direction  of  the  court  in  point  of  law,  matters  of  fact  being 
still  left  to  their  determination,  may,  and,  if  they  are  well 
advised,  always  will,  find  a  general  verdict  conformably  to  such 
direction."  Fost.  Cr.  Law  (3d  Ed.),  255,  256.  See,  also,  Kwy 
V.  Withers  (Lord  Kenyon),  3  Term  R.  428;  Bac*  Abr.  Tit. 
«  Juries,"  M  2;  2  Hawk.  P.  C.  c.  22,  §  21;  1  Duncomb,  Trials 
per  Pais  (Dublin,  1793),  pp.  229,  231. 

In  Wynne's  Eunomus,  or  Dialogues  Concernin"-  the  Law  and 
Constitution  of  England,  a  work  of  considerable  reputation, 
the  first  edition  having  been  published  about  the  time  of  the 
adoption  of  our  Constitution,  the  principle  is  thus  stated : 
"  All  that  I  have  said  or  have  to  say  upon  the  subject  of  juries 
is  agreeable  to  the  established  maxim  that '  juries  must  answer 
to  questions  of  fact,  and  judges  to  questions  of  law.'  This  is 
the  fundamental  maxim  acknowledged  by  the  constitution." 
"It  is  undoubtedly  true  that  the  jury  are  judges — the  only 
judges — of  the  fact.  Is  it  not  equally  within  the  spirit  of  the 
maxim  that  judges  only  have  the  competent  cognizance  of  the 
law  ?  Can  it  be  contended  that  the  jury  have  in  reality  an 
adequate  knowledge  of  law?  Or  that  the  constitution  ever 
designed  they  should  ? "    "  Well —  *  but  the  law  and  the  fact 


SPARF  ET  AL.  v.  UNITED  STATES. 


209 


are  often  complicated ' — then  it  is  the  province  of  the  judge  to 
distinguish  them;  to  tell  the  jury  that,  supposing  such  and  such 
fuels  were  done,  what  the  law  is  in  such  circumstances.  This  is 
an  unbiased  direction;  this  keeps  the  province  of  jQdge  and  jury 
distinct;  the  facts  are  left  altogether  to  the  jury,  and  the  law 
does  not  control  the  fact,  but  arises  from  it."  "  Every  verdict 
is  compounded  of  law  and  fact,  but  the  law  and  fact  are  always 
distinct  in  their  nature."  Wynne,  Eunomus,  Dialogue  3  (5th 
Ed.  1822),  §  53,  pp.  523,  527,  528. 

•Mr.  Stephens,  in  his  great  work  on  the  History  of  the  Crim- 
inal Law  of  Jilngland,  in  discussing  the  powers  of  juries  in 
France  says:  "The  right  of  the  counsel  for  the  defense  to 
address  the  jury  on  questions  of  law,  as,  for  instance,  whether 
killing  in  a  duel  is  meurtre,  is  one  of  the  features  in  which  the 
administration  of  justice  in  France  differs  essentially  from  the 
administration  of  justice  in  England.  In  England  the  judge's 
duty  is  to  direct  the  jury  in  all  matters  of  law,  and  any  argu- 
ments of  counsel  upon  the  subject  must  be  addressed  to  him, 
and  not  to  the  jury.  This  is  not  only  perfectly  well  established 
as  matter  of  law,  but  it  is  as  a  fact  acquiesced  in  by  all  whom 
it  concerns."    Volume  1,  p.  551. 

To  the  same  effect  is  Levi  v.  3£ilne,  4  Bing.  196,  reported  as 
Levy  V.  Milne,  12  Moore,  418,  and  decided  in  1827.  That  was 
an  action  of  libel.  Mr.  Sergeant  Wilde,  a  counsel  in  the  case, 
contended  that  in  cases  of  libel  the  jury  are  judges  of  the  law 
as  well  as  of  the  fact.  But  Lord  Chief  Justice  Best  said :  "  If 
the  jury  were  to  be  made  judges  of  the  law  as  well  as  of  fact, 
parties  would  bo  always  liable  to  suffer  from  an  arbitrary  de- 
cision. In  the  present  case  the  jury  have  made  themselves 
judges  of  the  law,  and  have  found  against  it."  "  My  Brother 
Wilde  has  stated  that  in  cases  of  libel  the  jury  are  judges  of 
the  law  as  well  as  of  fact,  but  I  beg  to  deny  that.  Juries  are 
not  judges  of  the  law,  or,  at  any  rate,  not  in  civil  actions.  The 
authority  on  which  the  learned  sergeant  has  probably  grounded 
his  supposition  is  32  Geo.  III.,  c.  CO,  which  was  the  famous  bill 
brought  in  by  Mr.  Fox,  or,  more  properly,  by  Lord  Erskine. 
But  whoever  reads  that  act  will  see  that  it  does  not  apply  to 
civil  actions ;  it  applies  only  to  criminal  cases.  There  is  noth- 
ing in  it  that  in  any  way  touches  civil  actions,  and  the  jury, 
with  respect  to  them,  stand  in  the  same  situation  as  they  ever 
have  done.  I  mean,  however,  to  protest  against  juries,  even  in 
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210 


AMERICAN  CRIMINAL  REPORTS. 


criminal  cases,  becoming  judges  of  the  law.  The  act  only  says 
that  they  may  find  a  general  verdict.  Has  a  jury  then  a  rigiit 
to  act  against  the  opinion  of  the  judge,  and  to  return  a  verdict 
on  their  own  construction  of  the  law  ?  I  am  clearly  of  oj)inion 
that  they  have  not."  The  reix)rt  by  Moore  of  this  opinion  is 
not  as  full  as  the  report  in  Bingham,  but  the  two  reports  do 
not  differ  in  any  material  respect. 

But  a  later  decision  was  that  by  Lord  Abinger,  C.  B.,  in 
1837,  in  Jiey.  v.  Parish,  8  Car.  &  P.  04.  That  was  an  indict- 
ment for  offering,  disposing  of,  and  putting  off  a  forged  bill 
of  exchange.  In  the  course  of  his  argument  to  the  jury  the 
counsel  for  the  accused  read  the  observations  of  Mr.  Justice 
Coleridge  in  a  certain  case  as  sustaining  his  view  of  the  law. 
He  was  interrupted  by  the  judge,  who  said :  "  I  can  not  allow 
you  to  read  cases  to  the  jury.  It  is  the  duty  of  the  jury  to 
take  the  law  from  the  judge.  It  no  doubt  often  happens  that, 
in  an  address  to  the  jury  counsel  cite  cases,  but  then  it  is  con- 
sidered that  that  part  of  the  speech  of  the  counsel  is  addressed 
to  the  judge.  That  can  not  be  so  here,  as  you  very  properly 
in  the  first  instance  referred  me  to  the  case,  and  you  have  my 
opinion  upon  it ;  you  can  therefore  make  no  further  legitimate 
use  of  the  case,  and  the  only  effect  of  reading  it  would  be  to 
discuss  propositions  of  law  with  the  jury,  with  which  they 
have  nothing  to  do,  and  which  they  ought  to  take  from  me." 

The  case  of  Parmiter  v.  CoiipelarnJ,  6  Mees.  &  W.  104,  IOC, 
108,  which  was  an  action  for  libel,  is  not  without  value,  as 
tending  to  show  that  Fox's  libel  bill,  so  far  from  changing  the 
rule,  as  generally  applicable  in  criminal  cases,  only  required  the 
same  practice  to  be  pursued  in  prosecutions  for  libel  as  in  other 
criminal  cases.  In  the  course  of  the  argument  of  counsel, 
Parke,  B.,  said :  "  In  criminal  cases  the  judge  is  to  define  the 
crime,  and  the  jury  are  to  find  whether  the  party  has  commit- 
ted that  offense.  Mr.  Fox's  act  made  it  the  same  in  cases  of 
libel,  the  practice  having  been  otherwise  before."  Again : 
"  But  it  has  been  the  course  for  a  long  time  for  a  judge,  in 
cases  of  libel,  as  in  other  cases  of  a  criminal  nature,  first  to 
give  a  legal  definition  of  the  offense,  and  then  to  leave  it  to  the 
jury  to  say  whether  the  facts  necessary  to  constitute  that  offense 
are  proved  to  their  satisfaction;  and  that  whether  the  libel  is 
the  subject  of  a  criminal  prosecution  or  civil  action.  A  pub- 
lication, without  justification  or  lawful  er.cuse,  which  is  cal- 


SPARF  £T  AL.  v.  UNITED  STATES. 


211 


culntccl  to  injure  the  reputation  of  another,  by  exposing  him 
to  hatred,  contempt,  or  ridicule,  is  a  libel.  Whether  the  par- 
ticular publication,  the  subject  of  inquiry,  is  of  that  character, 
and  would  be  likely  to  produce  that  effect,  is  a  question  upon 
which  a  jury  is  to  exercise  their  judgment,  and  pronounce  their 
opinion,  as  a  question  of  fact.  The  judge,  as  a  matter  of  advice 
to  them  in  deciding  that  question,  might  have  given  his  own 
opinion  as  to  the  nature  of  the  publication,  but  was  not  bound 
to  do  so  as  a  matter  of  law.  Mr.  Fox's  libel  bill  was  a  declara- 
tory act,  and  put  prosecution  for  libel  on  the  same  footing  as 
other  criminal  cases."  Alderson,  B.,  concurring,  said  that  the 
judge  "  ought,  having  defined  what  is  a  libel,  to  refer  to  the 
jury  the  consideration  of  the  particular  publication,  whether 
falling  within  that  definition  or  not." 

It  is  therefore  a  mistake  to  suppose  that  the  English  libel 
act  changed  in  any  degree  the  general  common-law  rule  in 
criminal  cases,  as  to  the  right  of  the  court  to  decide  the  law, 
and  the  duty  of  the  jury  to  apply  the  law  thus  given  to  the 
facts,  subject  to  the  condition,  inseparable  from  the  jury  system, 
.hat  the  jury,  by  a  general  verdict,  of  necessity  determined  in 
the  particular  case  both  law  and  fact,  as  compounded  in  the 
issue  submitted  to  them.  That  act  provides  that  "  the  court 
or  judge,  before  whom  such  indictment  or  information  shall  be 
tried,  shall,  according  to  their  or  his  discretion,  give  their  or 
his  opinion  and  directions  to  the  jury  on  the  matter  in  issue 
between  the  king  and  the  defendant,  in  like  manner  as  in  other 
criminal  cases."  "  This  seems,"  Mr.  Justice  Curtis  well  said, 
"  to  carry  the  clearest  implication  that  in  this  and  all  other 
criminal  cases  the  jury  may  be  directed  by  the  judge,  and  that, 
while  the  object  of  the  statute  was  to  declare  that  there  was 
other  matter  of  fact  besides  publication  and  the  innuendoes  to 
be  decided  by  the  jury,  it  was  not  intended  to  interfere  with 
the  proper  province  of  the  judge  to  decide  all  matters  of  law^." 
U.  S.  V.  Morris,  1  Curt.  55,  Fed.  Cas.  No.  15,815.  And  this 
accords  with  the  views  expressed  by  Lord  Abinger  in  Beeves 
V.  Templar,  2  Jur.  137.  He  said:  "Before  that  statute  a 
practice  had  arisen  of  considering  that  the  question,  libel  or  no 
libel,  was  always  for  the  court,  independent  of  the  intention 
and  meaning  of  the  party  publishing.  That  statute  corrected 
the  error,  and  now,  if  the  intention  does  not  appear  on  the 
body  of  the  libel,  a  variety  of  circumstances  are  to  be  left  to 


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AMERICAN  CRI»UNAL  REPORTS. 


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the  jury  from  which  to  infer  it;  but  it  was  never  intended  to 
take  from  the  court  the  power  of  deciding  whether  certain 
words  are,  per  se,  libelous  or  not." 

The  rule  that  jurors  do  not  respond  to  questions  of  law,  was 
illustrated  in  Bishop  of  Meath  v.  Marquis  of  Winchester,  4 
Clark  «fe  F.  655,  556,  557,  where  Lord  Chief  Justice  Tindal, 
delivering  the  unanimous  opinion  of  the  judges,  said :  "  With 
respect  to  the  second  question  lastly  above  proposed  tons,  viz., 
whether,  if  the  fine  were  received  in  evidence  it  ought  to  be 
left  to  the  jury  to  say  whether  it  barred  the  action  of  quare 
impedit,  we  all  think  that  the  legal  effect  of  such  fine  as  a  bar 
to  the  action  of  qrcare  imjyedit  is  a  matter  of  law  merely,  and 
not  in  any  way  a  matter  of  fact;  and,  consequently,  the  judge 
'who  tried  the  cause  should  state  to  the  jury  whether,  in  point 
of  law,  the  fine  had  that  effect,  or  what  other  effect,  on  the 
rights  of  the  litigant  parties,  upon  the  general  and  acknowl- 
edged principle  ^ad  quaestionem  juris  non  respondent  jura- 
tores.^  " 

Briefly  stated,  the  contention  of  the  accused  is  that,  although 
there  may  not  have  been  any  evidence  whatever  to  support  a 
verdict  of  guilty  of  an  offense  less  than  the  one  charged,  and 
such  was  the  case  here,  yet,  to  charge  the  jury,  as  matter  of 
law,  that  the  evidence  in  the  case  did  not  authorize  any  verdict 
except  one  of  guilty  or  one  of  not  guilty  of  the  particular  offense 
cl' ;. « ged,  was  an  interference  with  their  legitimate  functions, 
ar.a  therefore  with  the  constitutional  right  of  the  accused  to  be 
tried  by  a  jury. 

The  error  in  the  argument  on  behalf  of  the  accused  is  in 
making  the  general  rule  as  to  the  respective  functions  of  court 
and  jury  applicable  equally  to  a  case  in  which  there  is  some 
substantial  evidence  to  support  the  particular  right  asserted, 
and  a  case  in  which  there  is  an  entire  absence  of  evidence  to 
establish  such  right.  In  the  former  class  of  cases  the  court 
may  not,  without  impairing  the  constitutional  right  of  trial 
by  jury,  do  what,  in  the  latter  cases,  it  may  often  do  without 
at  all  intrenching  upon  the  constitutional  functions  of  the  jury. 
The  law  makes  it  the  duty  of  the  jury  to  return  a  verdict  accord- 
ing to  the  evidence  in  the  particular  case  before  them.  But,  if 
there  are  no  facts  in  evidence  bearing  upon  the  issue  to  be 
determined,  it  is  the  duty  of  the  court,  especially  when  so  re- 
quested, to  instruct  them  as  to  the  law  arising  out  of  that  state 


SPARF  ET  AL.  v.  UNITED  STATES. 


213 


of  case.  So,  if  there  be  some  evidence  bearing  upon  a  partic- 
ular issue  in  a  cause,  but  it  is  so  meager  as  not,  in  law,  to  jus- 
tify a  verdict  in  favor  of  the  party  producing  it,  the  court  is 
in  the  line  of  duty  when  it  so  declares  to  the  jury.  Pleasants 
V.  Faiit,  22  Wall.  116,  121;  Montolalr  v.  Dana,  107  U.  S.  102; 
Randall  v.  liallroad  Co.,  100  U.  S.  478,  4S2;  Schofield  v.  Hail- 
way  Co.,  lU  U.  S.  615,  619;  Marshall  v.  Iluhhard,  117  U.  S. 
415,  419;  Meeharv  v.  Valentine,  145  U.S.  611,  625. 

The  cases  just  cited  were,  it  is  true,  of  a  civil  nature ;  but 
the  rules  they  announce  are,  with  few  exceptions,  applicable 
to  criminal  causes,  and  indicate  the  true  test  for  determining 
the  respective  functions  of  court  and  jury.  Who  can  doubt, 
for  instance,  that  the  court  has  the  right,  even  in  a  capital  case, 
to  instruct  the  jury  as  matter  of  law  to  ret  am  a  verdict  of 
acquittal  on  the  evidence  adduced  by  the  prosecution  ?  Could 
it  be  said,  in  view  of  the  established  principles  of  criminal 
law,  that  such  an  instruction  intrenched  upon  the  province  of 
the  jury  to  determine  from  the  evidence  whether  the  accused 
was  guilty  or  not  guilty  of  the  offense  charged,  or  of  some 
lesser  offense  included  in  the  one  charged  ?  Under  a  given 
state  of  facts,  outlined  in  an  instruction  to  the  jury,  certain 
legal  presumptions  may  arise.  May  not  the  court  tell  the  jury 
what  those  presumptions  are,  and  should  not  the  jury  assume 
that  they  are  told  truly  ?  If  the  court  excludes  evidence  given 
in  the  hearing  of  the  jury,  and  instructs  them  to  disregard  it 
altogether,  is  it  not  their  duty  to  obey  that  instruction,  what- 
ever ma}"^  be  their  view  of  the  admissibility  of  such  evidence? 
In  Sm'ith  V.  U.  S.,  151  U.  S.  50,  55,  which  was  an  indictment 
for  the  murder,  in  the  Indian  Territory,  of  one  Gentry,  "a 
white  man,  and  not  an  Indian,"  we  said :  "  That  Gentry  was 
a  white  man,  and  not  an  Indian,  was  a  fact  which  the  govern- 
ment was  bound  to  establish,  and,  if  it  failed  to  introduce  any 
evidence  upon  that  point,  defendant  was  entitled  to  an  instruc- 
tion to  that  effect.  Without  expressing  any  opinion  as  to  the 
correctness  of  the  legal  propositions  embodied  in  this  charge, 
we  think  there  was  no  testimony  which  authorized  the  court 
to  submit  to  the  jury  the  question  whether  Gentry  was  a  white 
man  and  not  an  Indian.  The  objection  went  to  the  jurisdiction 
of  the  court,  and,  if  no  other  reasonable  inference  could  have 
been  drawn  from  the  evidence  that  Gentry  was  an  Indian,  de- 
fendant was  entitled,  as  matter  of  law,  to  an  acquittal,"  citing 


'  4 'Civ-  'f 


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214 


AMERICAN  CRIMINAL  REPORTS. 


Pleasants  v.  lant,  22  Wall.  116;  Commissiojiers  v.  Clark,  9i 
U.  S.  278;  and  Marshall  v.  Ilubhard,  117  U.  S.  415.  So,  in 
this  case,  it  was  comjietent  for  the  court  to  say  to  the  jury, 
that  on  account  of  the  absence  of  all  evidence  tending  to  show 
that  the  defendants  were  guilty  of  manslaughter,  they  could 
not,  consistently  with  law,  return  a  verdict  of  guilty  of  that 
crime. 

Any  other  rule  than  thiit  indicated  in  the  above  observations, 
would  bring  confusion  and  uncertainty  in  the  administration 
of  the  criminal  law.  Indeed,  if  a  jury  may  rightfully  disre- 
gard the  direction  of  the  court  in  matter  of  law,  and  determine 
for  themselves  what  the  law  is  in  the  particular  case  before 
them,  it  is  difficult  to  perceive  any  legal  ground  upon  which  a 
verdict  of  conviction  can  be  set  aside  by  the  court  as  being 
against  law.  If  it  be  the  function  of  the  jury  to  decide  the 
law  as  well  as  the  facts — if  the  function  of  the  court  be  only 
advisory  as  to  the  law — why  should  the  court  interfere  for  the 
protection  of  the  accused  against  what  it  deems  an  error  of 
the  jury  in  matter  of  law  ? 

Public  and  private  safety  alike  would  be  in  peril  if  the  prin- 
ciple be  established  that  juries  in  criminal  cases  ma},  of  right, 
disregard  the  law  as  expounded  to  them  by  the  court,  and  be- 
come a  law  unto  themselves.  Under  such  a  systenj,  the  prin- 
cipal function  of  the  judge  would  be  to  preside  and  keep  order 
while  jurymen,  untrained  in  the  law,  would  determine  ques- 
tions affecting  life,  liberty  or  projierty,  according  to  such  legal 
principles  as,  in  their  judgment,  were  applicable  to  the  par- 
ticular case  being  tried.  If  because,  generally  speaking,  it  is 
the  function  of  the  jury  to  determine  the  guilt  or  innocence 
of  the  accused,  according  to  the  evidence,  of  the  truth  or  weigli  t 
of  which  they  are  to  judge,  the  court  should  be  held  bound  to 
instruct  them  upon  a  point  in  respect  to  which  there  was  no 
evidence  whatever,  or  to  forbear  stating  what  the  law  is  upon 
a  given  state  of  facts,  the  result  would  be  that  the  enforce- 
ment of  the  law  against  criminals,  and  the  protection  of  citi- 
zens against  unjust  and  groundless  prosecutions  Avould  depend 
entirely  upon  juries  uncontrolled  by  any  settled,  fixed,  legal 
principles.  And  if  it  be  true  that  jurors  in  a  criminal  case  are 
under  no  legal  obligation  to  take  the  law  from  the  court,  and 
may  determine  for  themselves  what  the  law  is,  it  necessarily 
results  that  counsel  for  the  accused  may,  of  right,  in  the  prus- 


!    i       ■■•f 


SPARF  ET  AL.  v.  UNITED  STATES. 


215 


ence  of  both  court  and  jury,  contend  that  what  the  court 
declares  to  be  the  law  applicable  to  the  case  in  hand  is  not  the 
law,  and,  in  support  of  his  contention,  read  to  the  jury  the 
reports  of  adjudged  cases,  and  the  views  of  elementary  writers. 

Undoubtedly,  in  some  jurisdictions,  where  juries  in  criminal 
cases  have  the  right,  in  virtue  of  constitutional  or  statutory 
provisions,  to  decide  both  law  and  facts  upon  their  own  judg- 
ment as  to  what  the  law  is  and  as  to  what  the  facts  are,  it  may 
be  the  privilege  of  counsel  to  read  and  discuss  adjudged  cases 
before  the  jury.  And  in  a  few  jurisdictions,  in  which  it  is 
held  that  the  court  alone  responds  as  to  the  law,  that  practice 
is  allowed  in  deference  to  long  usage.  But  upon  principle, 
where  the  matter  is  not  controlled  by  express  constitutional 
or  statutory  provisions,  it  can  not  be  regarded  as  the  right  of 
counsel  to  dispute  before  the  jury  the  law  as  declared  by  the 
court.  Under  the  contrary  view,  if  it  be  held  that  the  court 
may  not  authoritatively  decide  all  questions  of  law  arising  in 
criminal  cases,  the  result  will  be  that  when  a  new  trial  in  a 
criminal  case  is  ordered,  even  by  this  court,  the  jury,  upon  such 
trial,  may  of  right  return  a  verdict  based  upon  the  assumption 
that  what  this  court  has  adjudged  to  be  law  is  not  law.  We 
can  not  give  our  sanction  to  any  rule  that  will  lead  to  such  a 
result.  We  must  hold  firmly  to  the  doctrine  that,  in  the  courts 
of  the  United  States,  it  is  the  duty  of  juries  in  criminal  cases 
to  take  the  law  from  the  court,  and  apply  that  law  to  the  facts, 
as  they  find  them  to  be  from  the  evidence.  Upon  the  court 
rests  the  responsibility  of  declaring  the  law;  upon  the  jury, 
the  responsibility  of  applying  the  law  so  declared  to  the  facts 
as  they,  upon  their  conscience,  believe  them  to  be.  Under  any 
other  system,  the  courts,  although  established  in  order  to  de- 
clare the  law,  would  for  every  practical  purpose  be  eliminated 
from  our  system  of  government  as  instrumentalities  devised 
foi'  the  protection  equally  of  society  and  of  individuals  in  their 
essential  rights.  When  that  occurs  our  government  will  cease 
to  be  a  government  of  laws,  and  become  a  government  of  men. 
Liberty,  regulated  by  law,  is  the  underlying  principle  of  our 
institutions. 

To  instruct  the  jury  in  a  criminal  case  that  the  defendant 
can  not  properly  be  convicted  of  a  crime  less  than  that  charged, 
or  to  refuse  to  instruct  them  in  respect  to  the  lesser  offenses 
that  might,  under  some  circumstances,  be  included  in  the  one 


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AMERICAN  CRIMINAL  REPORTS. 


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SO  charged — there  being  no  evidence  whatever  upon  Avhich  any 
verdict  could  be  properly  returned  except  one  of  guilty  or  one 
of  not  guilty  of  the  particular  offense  charged — is  not  error; 
for  the  instructing,  or  refusing  to  instruct,  under  the  circum- 
stances named,  rests  upon  legal  principles  or  presumptions 
which  it  is  the  province  of  the  court  to  declare  for  the  guid- 
ance of  the  jury.  In  the  case  supposed,  the  court  is  as  clearly 
in  the  exercise  of  its  legitimate  functions  as  it  is  when  ruling 
that  particular  evidence  offered  is  not  competent,  or  that  evi- 
dence once  admitted  shall  be  stricken  out  and  not  be  consid- 
ered by  the  jury,  or  when  it  withdraws  from  the  jury  all  proof 
of  confessions  by  the  accused  upon  the  ground  that  such  con- 
fessions, not  having  been  made  freely  and  voluntarily,  are  in- 
admissible under  the  law  as  evidence  against  the  accused. 

These  views  are  sustained  by  a  very  great  weight  of  au- 
thority in  this  country.  In  People  v.  Barry,  90  Cal.  41  (which 
was  a  criminal  prosecution  for  an  assault  Avith  intent  to  com- 
mit robbery,  the  accused  having  been  twice  before  convicted 
of  petit  larceny),  it  was  held  not  to  be  error  to  refuse  to  in- 
struct the  jury  that  under  the  charge  they  might  find  him 
guilty  of  simple  assault,  because  "  the  evidence  tended  to  show 
that  he  was  guilty  of  the  crime  charged  or  of  no  offense  at  all," 
and  therefore  "  the  instruction  asked  was  not  applicable  to  the 
facts  of  the  case;"  in  People  v.  McNutt,  93  Cal.  C58  (the  offense 
charged  being  an  assault  with  a  deadly  weapon  and  with  intent 
to  commit  murder),  that  an  instruction  that  the  jury  might 
convict  of  a  simple  assault  could  have  been  properly  refused, 
because,  "  under  the  evidence,  he  was  either  guilty  of  an  offense 
more  serious  than  simple  assault,  or  he  was  not  guilty; "  in 
Clark  V.  Coin.,  123  Pa.  St.  81  (a  case  of  murder),  that  the  omis- 
sion of  an  instruction  on  the  law  of  voluntary  manslaughter, 
and  the  power  of  the  jury  to  find  it,  was  not  error,  because 
the  murder  was  deliberate  murder,  and  "  there  was  no  evi- 
dence on  which  it  could  be  reduced  to  a  milder  form  of  homi- 
cide;" in  State  v.  Lane,  64  Mo.  319,324  (which  was  an  indict- 
ment for  murder  in  the  first  degree),  that,  "  if  the  evidence 
makes  out  a  case  of  murder  in  the  first  degree,  and  applies  to 
that  kind  of  killing,  and  no  other,  the  court  would  commit  no 
error  in  confining  its  instructions  to  that  offense,  and  refusing 
to  instruct  either  as  to  murder  in  the  second  degree  or  man- 
slaughter in  any  of  its  various  degrees,"  and  when  an  instruc- 


ti 
dc 


SPARF  ET  AL.  v.  UNITED  STATES. 


217 


tion  "  is  given  for  any  less  grade  of  offense,  and  there  is  no  evi- 
dence upon  which  to  base  it,"  the  judgment  should  be  reversed 
for  error;  in  McCoy  v.  Slate,  27  Tex.  App.  415  (the  charge  being 
murder  of  the  first  degree),  that  the  refusal  to  charge  the  law 
of  murder  in  the  second  degree  was  not  error,  for  the  reason 
that,  if  the  defendant  was  "  criminally  responsible  at  all  for  the 
homicide,  the  grade  of  the  offense  under  the  facts  is  not  short  of 
murder  of  the  first  degree;"  in  State  v.  McKlmiey,  111  N.C. 
683  (a  murder  case),  that>  as  there  was  no  testimony  on  either 
side  tending  to  show  manslaughter,  a  charge  that  there  was  no 
element  of  manshiughter  in  the  case,  and  that  the  defendant 
was  guilty  of  murder  or  not  guilty  of  anything  at  all,  as  the 
jury  should  find  the  facts,  was  strictly  in  accordance  with  the 
testimony  and  the  precedents;  in  State  v.  Musick,  101  Mo.  260, 
270  (14  S.  W.  212)  (where  the  charge  was  an  assault  with  malice 
aforethought,  punishable  by  confinement  in  the  penitentiary), 
that  an  instruction  looking  to  a  conviction  for  a  lower  grade 
included  in  the  offense  charged,  was  proper  where  there  was 
evidence  justifying  it;  in  State  ?>.  Casford,  76  Iowa,  332  (41 
K  W.  32),  that  the  defendant,  so  charged  in  an  indictment  that 
he  could  be  convicted  of  rape,  an  assault  to  commit  rape,  or  an 
assault  and  battery,  was  not  prejudiced  by  the  omission  of  the 
court  to  instruct  the  juiy  that  he  would  be  convicted  of  a  simple 
assault,  there  being  no  evidence  to  authorize  a  verdict  for  the 
latter  offense;  in  Jones  v.  State,  52  Ark.  346  (a  murder  case), 
that  it  was  not  error  to  refuse  to  charge  as  to  a  lower  grade  of 
offense,  there  being  "  no  evidence  of  any  crime  less  than  mur- 
der in  the  first  degree,"  and  the  defendant  being,  therefore, 
guilty  of  "  murder  in  the  first  degree,  or  innocent; "  in  Mg- 
Clemand  v.  Com.  (Ky.),  12  S.  VV.  148,  and  in  O'Brien  v.  Com., 
8!)  Ky.  354  (murder  cases),  that  an  instruction  as  to  man- 
slaughter need  not  be  given,  unless  there  is  evidence  to  justify 
it;  in  State  v.  Estep,  44  Kan.  575  (a  case  of  murder  of  the  first 
degree),  that,  there  being  no  testimony  tending  to  show  that 
the  defendant  was  guilty  of  manslaughter  in  either  the  first, 
second,  or  fourth  degree,  instructions  as  to  those  degrees 
should  not  have  been  given;  and  in  Bohlns&n  v.  State,  84  Ga. 
674  (a  case  of  assaidt  with  intent  to  murder),  that  the  refusal 
to  instruct  the  jury  that  the  defendant  could  have  been  found 
guilty  of  an  assault,-  or  of  assault  and  battery,  was  not  error, 


*H; 


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i 


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218 


AMERICAN  CRIMINAL  REPORTS. 


"for  there  was  nothing  in  the  evidence  to  justify  the  court  in 
so  instructing'  the  jury." 

We  have  siiid  that,  with  few  exceptions,  the  rules  which 
obtain  in  civil  cases  in  relation  to  the  authority  of  the  court  to 
instruct  the  jury  rpon  all  matters  of  law  arising  upon  the  issues 
to  be  tried,  are  'icable  in  the  trial  of  criminal  cases.  The 
most  imporiT:  .  ■,.■  ^■^^e  exceptions  is  that  it  is  not  competent 
for  the  3ourt,  la  a  criminal  case,  to  instruct  the  jury  peremp- 
torily t )  find  the  accused  guilty  of  the  offense  charged,  or  of 
any  criminal  otter  e  lei^"  ^'^an  that  charged.  The  grounds 
upon  which  this  exception  zests  were  well  stated  by  Judge 
McCrary,  Mr.  Justice  Miller  concurring,  in  U.  S.  v.  Taylor,  3 
McCrary,  500,  605.  It  was  there  said  :  "  In  a  civil  case,  the 
court  may  set  aside  the  verdict,  whether  it  be  for  the  plaintiff 
or  defendant,  upon  the  ground  that  it  is  contrary  to  the  law 
as  given  by  the  court;  jut  in  a  criminal  case,  if  the  verdict  is 
one  of  acquittal,  the  court  has  no  power  to  set  it  aside.  It 
would  be  a  useless  form  for  a  court  to  submit  a  civil  case,  in- 
volving only  questions  of  law,  to  the  consideration  of  a  jury, 
where  the  verdict,  when  found,  if  not  in  accordance  wirii  the 
court's  view  of  the  law,  would  be  set  aside.  The  same  result 
is  accomplished  by  an  instruction  given  in  advance  to  find  a 
verdict  in  accordance  with  the  court's  opinion  of  the  law.  But 
not  so  in  criminal  cases.  A  verdict  of  acquittal  can  not  be  set 
aside;  and  therefore,  if  the  court  can  direct  a  verdict  of  guilty, 
it  can  do  indirectly  that  which  it  has  no  power  to  do  directly." 

We  are  of  opinion  that  the  court  below  did  not  err  in  say- 
ing to  the  jury  that  they  could  not,  consistently  with  the  law 
arising  from  the  evidence,  find  the  defendants  guilty  of  man- 
slaughter, or  of  any  otfense  less  than  the  one  charged;  that  if 
the  defendants  were  not  guilty  of  the  offense  charged,  the  duty 
of  the  jury  was  to  return  a  verdict  of  not  guilty.  No  instruc- 
tion was  given  that  questioned  the  right  of  the  jury  to  deter- 
mine whether  the  witnesses  were  to  be  believed  or  not,  nor 
whether  the  defendant  was  guilty  or  not  guilty  of  the  offense 
charged.  On  the  contrary,  the  court  was  careful  to  say  that 
the  jury  were  the  exclusive  judges  of  the  facts,  and  that 
they  were  to  determine— applying  to  the  facts  the  principles 
of  law  announced  by  the  court — whether  the  evidence  estab- 
lished the  guilt  or  innocence  of  the  defendants  or  of  the 
charge  set  out  in  the  indictment. 


SPARF  ET  AL.  v.  UNITED  STATES. 


219 


The  trial  was  thus  conducted  upon  the  theory  that  it  was 
the  duty  of  the  court  to  expound  the  law,  and  that  of  the  jury 
to  api)ly  the  law  as  thus  declared  to  the  facts  as  ascertained  by 
them.  In  this  separation  of  the  functions  of  court  and  jury  is 
found  the  chief  value,  as  well  as  safety,  of  the  jury  system. 
Those  functions  can  not  be  confounded  or  disregarded  without 
endangering  the  stability  of  public  justice,  as  well  as  the 
security  of  private  and  personal  rights. 

The  main  reason  ordinarily  assigned  for  a  recognition  of  the 
right  of  the  jury,  in  a  criminal  case,  to  take  the  law  into  their 
own  hands,  and  to  disregard  the  directions  of  the  court  in  mat- 
ters of  law,  is  that  the  safety  and  liberty  of  the  citizen  will  bo 
thereby  more  certainly  secured.  That  view  was  urged  upon 
Mr.  Justice  Curtis.  After  stating  that,  if  he  conceived  the 
reason  assigned  to  be  well  founded,  he  would  pause  long  before 
denying  the  existence  of  the  power  claimed,  he  said  that  a  good 
deal  of  reflection  had  convinced  him  that  the  argument  was 
the  other  way.  He  wisely  observed  that :  "As  long  as  the 
judges  of  the  United  States  are  obliged  to  express  their  opin- 
ions publicly,  to  give  their  reasons  for  them  when  called  upon 
in  the  usual  mode,  and  to  stand  responsible  for  them,  not  only 
to  public  opinion,  but  to  a  court  of  impeachment,  I  can  appre- 
hend very  little  danger  of  the  laws  being  wrested  to  purposes 
of  injustice.  But,  on  the  other  hand,  I  do  consider  that  this 
power  and  corresponding  duty  of  the  court  authoritatively  to 
declare  the  law  is  one  of  the  highest  safeguards  of  the  citizen. 

The  sole  end  of  courts  of  justice  is  to  enforce  the  laws  uni- 
formly and  impartially  without  respect  of  persons  or  times  or 
the  opinions  of  men.  To  enforce  popular  laws  is  easy.  But 
when  an  unpopular  cause  is  a  just  cause;  when  a  law,  unpopu- 
lar in  some  locality,  is  to  bo  enforced,  there  then  comes  the 
strain  upon  the  administration  of  justice;  and  few  unprejudiced 
men  would  hesitate  as  to  where  that  strain  would  be  most 
tirmly  borne."  U.  S.  v.  Morris,  1  Curt.  62,  63;  Fed.  Cas.  Ko. 
15,815. 

The  questions  above  referred  to  are  the  only  ones  that  need 
be  considered  on  this  writ  of  error. 


w'. 


w,T 


t-  -a 


' ' !  ill 


y 


\    « 


i^   . 


^;  :^  I 


Mil?.-*! 


Mr,  Justice  Jackson  participated  in  the  decision  of  this 
case,  and  concurs  in  the  views  herein  expressed. 
The  judgment  of  the  circuit  court  is  affirmed  as  to  Hansen, 


■;l 


220 


AMERICAN  CRIMINAL  REPORTS. 


but  is  reversed  as  to  Sparf,  with  directions  for  a  new  trial  as 
to  him. 

Mr.  Justice  Brkwer,  dissentin":. 

I  concur  in  the  views  expressed  in  the  opinion  of  the  court 
as  to  the  separate  functions  of  court  and  jury,  and  in  the  judg- 
ment of  affirmance  against  Hansen;  but  I  do  not  concur  in 
holding  that  the  trial  court  erred  in  admitting  evidence  of 
confessions,  or  in  the  judgment  of  reversal  as  to  Sparf. 

The  facts,  briefly  stated,  are  these :  There  was  a  single  in- 
dictment, charging  the  defendants  jointly  with  the  crime  of 
murder.  There  was  a  single  case  on  trial,  a  case  in  which 
the  government  was  the  party  on  one  side  and  the  two  de- 
fendants the  party  on  the  other.  These  two  defendants  were 
represented  by  the  same  counsel.  Three  witnesses  testified  to 
confessions  of  Hansen.  Counsel  for  defendants  objected  to 
each  of  these  confessions.  These  objections  were  in  the  same 
form.  They  purported  to  be  for  the  defendants  jointly,  and  not 
separately  for  each.  Two  of  the  confessions  were  given  in  the 
presence  of  Sparf,  and  in  admittimg  them,  it  is  not  pretended 
that  there  Avas  any  error.  One  was  made  in  the  absence  of 
Sparf,  and  it  is  held  that  the  court  erred  in  overruling  the  ob- 
jection to  it.  The  objection  was  that  the  testimony  offered 
was  "  irrelevant,  immaterial,  and  incompetent,  and  upon  the 
ground  that  any  statement  made  by  Hansen  was  not,  and 
could  not  be,  voluntary.''  It  will  be  noticed  that  this  objec- 
tion was  both  general  and  special;  the  special  ground,  that 
which  would  naturally  arrest  the  attention  of  the  court,  beino- 
that  the  confession  was  not  voluntary.  This  ground  of  objec- 
tion, it  is  admitted,  was  not  well  taken.  If  there  was  any 
error  it  was  in  overruling  the  general  objection  that  the 
testimony  was  irrelevant,  immaterial,  and  incompetent.  But 
it  is  conceded  that  this  confession  was  material,  relevant,  and 
competent,  was  properly  admitted  in  evidence  on  the  single 
trial  then  pending,  and  properly  heard  by  the  jury.  The  real 
burden  of  complaint  is  that,  when  the  court  admitted  the  testi- 
mony, it  ought  to  have  instructed  the  jury  that  it  was  evidence 
only  against  Hansen,  and  not  against  Sparf.  But,  in  common 
fairness,  ought  not  the  attention  of  the  court  to  have  been 
called  to  the  difference,  and  a  ruling  had  upon  that  difference  ? 
Can  not  parties  present  a  joint  objection  to  testimony,  and  rest 


SPARF  ET  AL.  v.  UNITED  STATES. 


221 


their  case  upon  such  objection  ?  Is  it  the  duty  of  the  court  to 
considor  a  matter  which  is  not  called  to  its  attention,  and 
make  a  ruling  which  it  is  not  asked  to  make  ?  Is  it  not  the  duty 
of  the  court  to  be  impartial  between  the  government  and  the 
defendant,  and  decide  simply  the  questions  which  each  party 
presents  ?  Is  it  its  duty  to  watch  over  the  interests  of  either 
party,  and  to  put  into  the  mouth  of  counsel  an  objection  which 
he  does  not  make  ?  To  my  mind,  such  a  doctrine  is  both  novel 
and  dangerous.  I  do  not  question  the  proposition  that  a  con- 
fession made  by  one  of  two  defendants  in  the  absence  of  the 
other  is  to  be  considered  by  the  jury  only  as  against  the  one 
making  it,  and  I  admit  that,  if  a  separate  objection  had  been 
made  by  Sparf,  the  court  would  have  been  called  upon  to 
formally  sustain  such  objection,  and  instruct  the  jury  that 
such  testimony  was  to  be  considered  by  them  only  as  against 
Hansen.  If  an  instruction  had  been  asked,  as  is  the  proper 
way,  the  attention  of  the  court  would  have  been  directed  to 
the  matter,  and  an  adverse  ruling  would  have  rightly  pre- 
sented the  error  which  is  now  relied  upon.  But  I  need  not 
refer  to  the  oft-repeated  decisions  of  this  court,  that  there  is 
no  error  in  failing  to  give  an  instruction  which  is  not  asked, 
unless  it  be  one  of  those  which  a  statute  in  terms  requires  the 
court  to  give,  and  there  is  no  pretense  of  any  such  statute. 
Lewis  V.  Zee  Co.,  66  Ala.  480,  489,  was  decided  in  accordance 
with  the  views  which  I  have  expressed.  The  court  in  that 
case  say : 

"  The  witness  Frazier's  testimony,  as  to  his  conversation 
with  the  defendant  Lewis  regarding  the  condition  of  his  ac- 
counts as  county  treasurer,  was  properly  admitted  in  evidence. 
It  was  certainly  good  as  an  admission  against  him,  and  could 
not  be  excluded  because  not  admissible  against  the  sureties, 
who  were  his  defendants  in  the  action.  The  practice  on  this 
point  is  well  settled  in  this  State  that  the  only  remedy  of  a  co- 
defendant  in  such  a  case  is  to  request  a  charge  from  the  court 
to  the  jury,  limiting  the  operation  of  the  evidence,  so  as  to 
confine  its  influence  only  to  the  defendant  against  whom  it  is 
admissible." 

So  in  State  v.  Briie,  73  K.  C.  26,  28,  a  similar  ruling  was 
made,  the  court  saying : 

"  The  defendant's  first  exception  is  that  his  honor  allowed 
Culpapper,  a  co-defendant,  to  introduce  witnesses  to  prove  his 


!^!-S 


it  ■! 


222 


AMERICAN  CRIMINAL  REPORTS. 


(Brite's)  declarations  while  in  jail,  which  tended  to  exonerate 
Culpepper." 

"  While  these  declarations  are  not  evidence,  either  for  or 
against  Culpepper,  being,  as  to  him,  res  inter  alios  acta,  and 
made  by  one  not  under  oath  and  subject  to  cross-examination, 
yet  they  are  clearly  admissible  against  Brite,  and  it  makes  no 
difference  whether  they  were  called  forth  by  the  State,  or  by 
Culpepper  without  objection,  or  rather  with  the  sanction  of  the 
State." 

I  have  been  able  to  find  no  case  laying  down  a  contrary  doc- 
trine. In  Insurance  Co.  v.  IlUlmon,  145  U.  S.  285,  each  de- 
fendant separately  for  itself  presented  the  objection,  and  each, 
therefore,  had  the  right  to  avail  itself  of  the  ruling  made  by 
the  court.  Indeed,  I  think  this  will  be  found  to  be  the  first 
case  in  which  it  has  been  held  that,  while  the  court  properly 
allowed  testimony  to  go  to  the  jury  on  the  trial  of  a  case,  the 
judgment  has  been  reversed  because  it  failed  to  call  the  atten- 
tion of  the  jury  to  the  bearing  of  that  evidence  upon  the  differ- 
ent parties  when  such  parties  never  asked  the  court  to  so  in- 
struct the  jury. 

1  am  authorized  to  say  that  Mr.  Justice  Brown  concurs  in 
these  views. 

(Jan.  21,  1895.) 

Mr.  Justice  Gray,  with  whom  concurred  Mr.  Justice  Shiras, 
dissenting. 

Mr.  Justice  Shiras  and  myself  concur  in  so  much  of  the 
opinion  of  the  majority  of  the  court  as  awards  a  new  trial  to 
one  of  the  defendants  by  reason  of  the  admission  in  evidence 
against  him  of  confessions  made  in  his  absence  by  the  other. 

But  from  the  greater  part  of  that  opinion,  and  from  the  af- 
firmance of  the  conviction  of  the  other  defendant,  we  are  com- 
pelled to  dissent,  because,  in  our  judgment,  the  case,  involving 
the  question  of  life  or  death  to  the  prisoners,  was  not  submitted 
to  the  decision  of  the  jury  as  required  by  the  Constitution  and 
laws  of  the  United  States. 

The  two  defendants,  Herman  Sparf  and  Hans  Hansen,  to- 
gether with  Thomas  St.  Clair,  seamen  on  board  the  brig  Hes- 
per,  an  American  vessel,  were  indicted  for  the  murder  of  Mau- 
rice Fitzgerald,  the  second  mate,  on  the  high  seas,  on  January 
13, 1893,  by  striking  him  with  a  weapon,  and  by  throwing  him 
overboard  and  drowning  him. 


SPARF  ET  AL.  v.  UNITED  STATES. 


223 


St.  Clair  was  separately  tried,  convicted  and  sentenced,  and 
his  conviction  was  affirmed  by  this  court  at  the  last  term.  154 
U.  S.  134. 

At  the  trial  of  Sparf  and  Hanson,  there  was  no  direct  testi- 
mony of  any  eye  witness  to  the  killing,  or  to  any  assault  or 
affray.  There  was  evidence  that  at  ten  o'clock  in  the  evening 
of  tlio  day  in  question  the  second  mate  was  at  the  wheel,  in 
charge  of  the  starboard  watch,  consisting  of  St.  Clair,  Sparf, 
Hansen  and  another  seamen;  and  that,  when  the  watch  was 
changed  at  midnight,  the  second  mate  could  not  bo  found,  and 
there  was  much  blood  on  the  deck,  as  well  as  a  bloody  broom- 
stick and  a  wooden  bludgeon.  The  rest  of  the  evidence  con- 
sisted of  testimony  of  other  seamen  to  acts  and  statements  of 
each  defendant  and  of  St.  Clair,  before  and  after  the  disappear- 
ance of  the  second  mate,  tending  to  prove  a  conspiracy  to  kill 
him;  and  to  subsequent  confessions  of  Hansen,  tending  to  show 
that  the  killing  was  premeditated. 

The  judge,  in  his  charge  to  the  jury,  gave  the  following  in- 
structions :  "  The  indictment  is  based  upon  section  5339  of 
the  revised  statutes,  which  provides,  among  other  things,  that 
♦  every  person  who  commits  murder '  '  upon  the  high  seas,  or 
in  any  arm  of  the  sea,  or  in  any  river,  haven,  creek,  basin  or 
bay,  within  the  admiralty  and  maritime  jurisdiction  of  the 
United  States,  and  out  of  the  jurisdiction  of  any  particular 
State,  or  who  upon  any  of  such  waters  maliciously  strikes, 
stabs,  wounds,  poisons  or  shoots  at  any  other  person,  of  which 
striking,  stabbing,  wounding,  poisoning  or  shooting  such  other 
person  dies,  either  on  land  or  at  sea,  within  or  without  the 
United  States,  shall  suffer  death.' " 

"  Murder  is  the  unlawful  killing  of  a  human  being  in  the 
peace  of  the  State,  with  malice  aforethought,  express  or  im- 
plied." "Express  malice"  was  defined  as  "deliberate,  pre- 
meditation and  design,  formed  in  advance,  to  kill  or  to  do  bodily 
harm,  the  premeditation  and  design  being  implied  from  exter- 
nal circumstances  capable  of  proof,  such  as  lying  in  wait,  ante- 
cedent threats,  and  concerted  schemes  against  a  victim ; "  and 
"  implied  malice  "  as  "  an  inference  of  the  law  from  any  delib- 
erate and  cruel  act  committed  by  one  person  against  another," 
"  that  is,  malice  is  inferred  when  one  kills  another  without 
provocation,  or  when  the  provocation  is  not  great."  "  Man- 
slaughter is  the  unlawful  killing  of  a  human  being  without 


221 


AMERICAN  CRIMINAL  REPORTS. 


H  ■• 


fit     ^i-r 


:  ■•(' 


■?14l 


M 


malice,  either  express  or  implied.  I  do  not  consider  it  neces- 
sary, gentlemen,  to  explain  it  further;  for,  if  a  felonious  homi- 
cide has  been  committed — of  which  you  are  to  be  the  jud/res 
from  the  proof — there  is  nothing  in  this  case  to  reduce  it  bo- 
low  the  grade  of  murder."  "  Every  person  ]iresent  at  a  mur- 
der, willingly  aiding  or  abcttmg  its  perpetration,  is  guilty  of 
murder,  and  may  be  indicted  and  convicted  as  principal  in  tic 
first  degree."  "It  is  not  my  ])urpose,  nor  is  it  my  function, 
to  assume  any  fact  to  be  proven,  nor  to  suggest  to  you  that 
any  fact  has  been  proven.  Vou  are  the  exclusive  judges  of 
the  facts." 

The  defendants  requested  the  judge  to  instruct  the  jury  that 
"  under  the  indictment  in  this  case  the  defendants  may  be  con- 
victed of  murder  or  manslaughter  or  of  an  attempt  to  commit 
murder  or  manslaughter;  and  if,  after  a  full  and  careful  con- 
sideration of  all  the  evidence  before  you,  you  believe  beyonil 
a  reasonable  doubt  that  the  defendants  are  guilty  either  of 
manslaughter,  or  of  an  assault  with  intent  to  commit  murder 
or  manslaughter,  you  should  so  find  your  verdict."  The  judge 
refused  to  give  this  instruction,  and  the  defendants  excepted 
to  the  refusal. 

The  jury,  after  deliberating  on  the  case  for  some  time,  re- 
turned into  court,  and,  being  asked  whether  they  had  agreed 
upon  a  verdict,  the  foreman  said  that  one  of  the  jurors  wished 
to  be  instructed  upon  certain  points  under  the  laws  of  the  United 
States,  as  to  murder  upon  the  high  seas.  One  of  the  jurors 
then  said  that  he  "  would  like  to  know,  in  regard  to  the  inter- 
pretation of  the  laws  of  the  United  States  in  regard  to  man- 
slaughter, as  to  whether  the  defendants  can  be  found  guilt}'  of 
manslaughter,  or  that  the  defendants  must  be  found  guilty," 
evidently  meaning  "  of  murder,"  the  whole  offense  charged  in 
the  indictment. 

The  judge  then  read  again  section  5339  of  the  Revised  Stat- 
utes. The  juror  asked,  *'Are  the  two  words  'aiding'  or 
'abetting' defined?"  The  judge  replied :  " The  words  ' aid- 
ing or  abetting '  are  not  defined.  But  I  have  instructed  you 
as  to  the  legal  effect  of  aiding  and  abetting,  and  this  you 
should  accept  as  law.  If  I  have  made  an  error,  there  is  a 
higher  tribunal  to  correct  it."  The  juror  said :  "  I  am  the 
spokesman  for  two  of  us.  We  desire  to  clearly  understand  the 
matter.    It  is  a  barrier  in  our  mind  to  our  determining  the 


Kf 


Il   ^ 


SPAHF  ET  AL.  v.  UNITED JdTATES. 


225 


matter.  The  question  arising  amongst  us  is  as  to  aiding  and 
abetting.  Furthennoro,  as  I  understand,  it  must  bo  one  thing 
or  tlie  otiier.  It  must  be  guilty  or  not  guilty."  The  judge 
replied :  "  Yes,  under  the  instructions  I  have  given  you."  The 
judge,  then,  after  repeating  the  general  definitions,  as  before 
given,  of  murder  and  of  manslaughter,  said :  *'  If  a  felonious 
homicide  has  boon  committed  by  either  of  the  defendants, 
of  which  you  are  to  be  the  judges  from  the  proof,  there  is 
nothing  in  this  case  to  reduce  it  below  the  grade  of  murder; " 
and  in  answer  to  further  questions  of  the  juror  repeated  this 
again  and  again,  and  said :  "  In  a  proper  case,  it  may  be 
murder,  or  it  may  be  manslaughter,  but  in  this  case  it  can  not 
properly  be  manslaughter."  The  defendants  excepted  to 
these  instructions.  And  finally,  in  answer  to  the  juror's  direct 
question,  "  Then  there  is  no  other  verdict  we  can  bring  in, 
except  guilty  or  not  guilty?"  the  judge  said:  "In  a  proper 
case,  a  verdict  for  manslaughter  may  be  rendered,  as  the  dis- 
trict attorney  has  stated ;  and  even  in  this  case  you  have  the 
physical  power  to  do  so;  but,  as  one  of  the  tribunals  of  the 
country,  a  jury  is  expected  to  be  governed  by  law,  and  the  law 
it  should  receive  from  the  court."  The  juror  then  said: 
"  Tiiere  has  been  a  misunderstanding  amongst  us.  Now,  it  is 
clearly  interpreted  to  us,  and,  no  doubt,  we  can  now  agree  on 
certain  facts."  Thereupon  a  verdict  of  guilty  of  murder  was 
returned  against  both  defendants,  and  they  were  sentenced  to 
death,  and  sued  out  this  writ  of  error. 

The  judge,  by  instructing  the  jury  that  they  were  bound  to 
accept  the  law,  as  given  to  them,  by  the  court,  denied  their 
right  to  decide  the  law.  And  by  instructing  them  that,  if  a 
felonious  homicide  by  the  defendants  was  proved,  there  was 
nothing  in  the  case  to  reduce  it  below  the  grade  of  murder, 
and  they  could  not  properly  find  it  to  be  manslaughter,  and 
by  declining  to  submit  to  them  the  question,  whether  the  de- 
fendants were  guilty  of  manslaughter  only,  he  denied  their 
right  to  decide  the  fact.  The  colloquy  between  the  judge 
and  the  jurors,  when  they  came  in  for  further  instructions, 
clearly  shows  that  the  jury,  after  deliberating  upon  the 
case,  were  in  doubt  whether  the  crime  ^vhich  the  defendants 
had  committed  was  murder  or  manslaughter;  and  that  it  was 
solely  by  reason  of  these  instructions  of  the  judge  that  they 
returned  a  verdict  of  the  higher  crime. 

15 


miL.'t 


MC^M 


'4    ' 


tit'    'll 
I,-;:  Jill 

)■■■     4  A  '■  •■ 


w  ■  i  ■m 


226 


AMERICAN  CRIMINAL  REPORTS. 


it  ^i 


It  is  our  deep  and  settled  conviction,  confirmed  by  a  re-ex- 
amination of  the  authorities  under  the  responsibility  of  taking 
part  in  the  consideration  and  decision  of  the  capital  case  now 
before  the  court,  that  the  jury,  upon  the  general  issue  of  guilty 
or  not  guilty  in  a  criminal  case,  have  the  right  as  well  as  the 
power,  to  decide,  according  to  their  own  judgment  and  con- 
sciences, all  questions,  whether  of  law  or  of  fact,  involved  in 
that  issue. 

[The  learned  justice  enters  into  a  very  able  and  exhaustive 
review  of  the  foundation,  expansion  and  growth  of  the  right 
of  trial  by  jury  in  criminal  cases,  and  by  a  most  logical  and 
fanciful  argument  covering  some  73  pages  of  the  report  main- 
tains that  it  is  the  right  of  the  jury,  according  to  their  own 
judgment  and  consciences,  to  decide  questions  of  law  as  well 
as  of  fact.  It  is  quite  evident  that  the  polished,  cultured  and 
learned  justice  does  not  preside  at  trials  in  the  Criminal  Court 
of  Cook  county  where  he  would  be  regaled  daily  with  the 
harangues  of  learned  counsel,  extolling  the  beneficence  and 
wisdom  of  the  law  which  made  jurors  judges  of  the  law  as 
well  as  the  facts. 

The  Supreme  Court  of  Vermont,  in  the  recent  case  of  State 
V.  Burpee,  9  Am.  Cr.  K.,  536,  declared  a  similar  statute  of  that 
State  unconstitutional. 

That  part  of  the  opinion  which  denies  to  the  jury  the  right 
to  say  whether  accused  was  guilty  of  murder  or  manslaughter, 
in  my  judgment,  is  not  good  law.  It  is  a  question  for  tlie 
jury  under  proper  instructions. — Ed.] 

Note.— Con/esstons  inadmimble  unless  voluntary.— The  Supreme  Court 
of  Alabama,  in  the  recent  case  of  Bradford  v.  State,  104  Ala.  68,  say:  "  The 
rule  is  well  recognized  that  confessions  in  criminal  cases  are  prima  facie  in- 
admissible, and,  unless  waived,  will  not  be  received  until  the  court,  pro- 
ceeding with  great  care  and  caution,  is  made  satisfied  by  evidence  that  they 
were  entirely  voluntary.  See  the  strong  language  used  in  following  cases: 
Bonner  v.  State,  55  Ala.  242;  Young  v.  State,  68  Ala.  569;  Brister  v.  State, 
26  Ala.  107;  Owen  v.  State,  78  Ala.  425;  Wilsoni^  State,  84  Ala.  426,  4  South. 
883;  Amosv.  State,  83  Ala.  1,  3  South.  740.  In  the  case  last  cited  there  was 
a  mere  general  objection  to  the  evidence  of  the  confessions,  specifying  no 
ground;  and  this  court  reversed  the  judgment,  for  error  in  overruling  it, 
because  there  had  been  no  proper  predicate  laid  for  the  introduction  of  con- 
fessions. In  the  present  case  we  have  seen  the  defendant  objected  on  the 
grounds,  with  othere,  that  the  testimony  was  incompetent  and  illegal. 
When  this  was  done,  we  hold  the  court  ought  to  have  required  satisfactory 
proof,  according  to  the  spirit  and  intent  of  the  above-named  decisions,  tliat 
the  confessions  were  voluntarily  made,  before  admitting  thorn,  and  erred  in 
not  doing  so." 


STATE  V.  DYER  ET  AL. 


227 


game.— It  appeared  that  defendant,  who  bore  an  assumed  name  when 
arrested,  confessed  when  the  sheriff  confronted  him  with  his  true  name, 
aud  afterward  told  the  sheriff  that  he  should  plead  guilty,  and  that  the 
sheriff  replied  that  in  that  case  he  would  speak  to  the  judge  and  get  de- 
fendant oil  as  easy  as  possible.  Held,  that  a  charge  that  confessions  must 
be  made  voluntarily,  and  that  if  defendant  made  them  under  undue  in- 
fluence they  could  not  be  considered,  was  sufficiently  favorable  to  defend- 
ant   People  V.  Warner,  104  Mich.  837. 

Sufficient  to  convict, — Where,  in  a  murder  case,  the  only  evidence  of  the 
circumstances  of  the  killing  is  contained  in  defendant's  alleged  confession 
that  he  entered  deceased's  building  to  commit  larceny,  deceased  got  be- 
tween him  and  the  door,  and  "  I  watched  my  chance,  and  jumped  on  the 
old  man,  and  wrenched  his  pistol,  and  the  old  man  hollered  '  Murder.' 
Then  I  shot  him  through  the  body.  The  old  man  said  :  '  You  have  got 
me.'  I  aimed  to  shoot  him  aud  this  must  have  been  when  I  shot  him  in  the 
neck.  And  I  shot  him  again,"  it  is  proper  to  instruct  either  to  acquit  or 
find  defendant  guilty  of  murder  in  the  first  degree,  the  second  and  third 
shots  being  the  fatal  ones,  and  the  confession  showing  that  they  were  fired 
with  deliberation  and  premeditation.    State  v.  Covington,  117  N.  C.  834. 

Presence  of  mob  renders  confession  inadmissible. — Defendant,  on  being 
arrested  by  a  mob  for  murder,  was  first  taken  into  the  woods,  where  he  was 
told  by  one  that  it  would  be  best  for  him  to  confess,  although  the  leader  of 
the  mob  stated  that  they  did  not  want  a  confession  unless  it  was  voluntary, 
whereupon  defendant  confessed;  then,  in  orc^er  to  compel  him  to  tell  where 
the  weapon  was  that  he  used,  the  mob  threatened  to  hang  him.  Held, 
that  none  of  the  confession  was  admissible.  »Villiam3  v.  State,  105  Ala. 
96. 

Foundation  to  be  laid — Harmless  error. — One  who  lived  with  defendant 
testified  for  the  State  that  on  the  ni^ht  of  the  murder,  defendant,  on  com- 
ing home,  told  witness  that  he  killed  deceased,  and  warned  witness  to  keep 
silence.  Held,  that  error  in  admitting  the  confession  without  foundation 
having  been  laid  therefor  was  harmless,  since  it  appeared  by  the  testimony 
that  the  confession  was  voluntary.    People  v.  Kamaunu,  110  Cal.  155. 

Conviction  may  be  had  upon  confession  of  accused, — The  corpus  delicti 
being  established  independently  of  the  admissions  or  confessions  of  the  ac- 
cused, then  admissions  or  confessions,  freely  and  voluntarily  made,  may 
be  sufficient  on  which  to  convict.    Gore  v.  People,  163  111.  259. 

Proof  of  con fession  of  crimes  other  than  that  charged — When  not  error. 
—Confession  by  the  accused  of  a  crime  other  than  that  charged  in  the  in- 
dictment, while  not  admissible  aa  a  substantive  fact,  may,  when  not  sep- 
arable from  a  competent  confession,  go  to  the  jury,  under  cautionary 
directions  from  the  court.    Jd. 


State  v.  Dyer  et  al. 

(67  Vt.  890.) 

Conspiracy:    To  prevent  non-union  ujorkman  from  obtaining  employ- 
ment — Prosecution  by  information — Evidence — Misnomer. 

1.  R.  L.,  §  1618,  Vermont,  provides  for  the  prosecution  by  information  of 
all  crimes  except  capital  and  those  punishable  by  imprisonment  in  the 


k     I 


>M  P']' 


r' 


iv  i  , 


228 


AMERICAN  CRIMINAL  REPORTS. 


State's  prison  more  than  seven  years;  section  4365  provides  that  im- 
prisonment declared  by  law  as  punishment  for  any  offense  not  specified 
to  be  in  the  State  prison,  shall  be  in  the  house  of  correction;  section  689 
adopts  so  much  of  the  common  law  as  is  applicable  to  the  local  situa- 
tion. Held  that,  as,  under  the  common  law,  conspiracy  is  a  mis- 
demeanor, the  prosecution  by  information  was  proper. 

2.  An  information  charging  that  the  conspiracy  was  to  prevent  a  certain 

person  "  from  obtaining  work  or  employment  or  continuing  in  said 
work  and  employment "  with  a  certain  corporation,  "  or  in  any  other 
shops  or  works,"  is  not  bad,  as  charging  offenses  in  the  alternative. 

3.  On  a  prosecution  of  members  of  a  union  for  conspiracy  to  drive  a 

mechanic  out  of  his  employment  because  he  would  not  join  a  union, 
conversations  between  certain  of  the  conspirators  and  one  with  whom 
the  mechanic,  after  being  driven  from  his  employment,  had  engaged 
to  work,  taking  place  a  week  after  the  mechanic  had  been  driven  from 
his  first  employment,  are  admissible  which  connects  such  conspirator 
with  the  conspiracy. 

4.  Admissions  by  one  of  the  conspirators,  made  to  a  sheriff  who  held  him  in 

arrest,  as  to  his  connection  with  the  union,  and  his  actions  in  regard  to 
the  mechanic  conspired  against,  are,  when  restricted  to  the  incrimina- 
tion of  himself,  properly  admitted  in  evidence. 

5.  Where,  in  such  a  case,  there  was  evidence  that  all  the  persons  charged 

were  members  of  the  union:  that  the  mechanic  was  compelled  by  tliem, 
as  members  of  such  union,  to  quit  his  employment;  that  one  of  the 
accused  was  secretary,  and  recorded  the  minutes  of  an  executive  meet- 
ing at  which  a  report  of  the  mechanic's  case  was  made,  and  was  at  sutii 
meeting  appointed,  and  subsequently  acted,  as  one  of  a  committee  to 
investigate  the  trouble,  held,  that  the  secretary  was  a  conspirator. 

Exceptions  from  Washington  County  Cour*,;  Munson,  Judge. 
Josiah  B.  Dyer  and  others  were  convicted  of  conspiracy, 
and  except.    Exceptions  overruled. 

The  material  part  of  the  information  was  as  follows :  First 
count :  "  That  Josiah  B.  Dyer  and  Thomas  Quinlan,  of  Barre, 
in  the  county  of  Washington,  and  Frank  Morrill,  Patrick 
Morrison,  Peter  Hernon,  E.  D.  Sherburne,  II.  P.  Sylvester, 
Thomas  Hocking  and  Alex.  Cruickshank,  of  Montpelier,  in  the 
county  ot'  Washington,  with  divers  evil-disposed  persons,  to 
the  state's  attorney  unknown,  on  the  22d  day  of  November, 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and  eighty- 
nine,  at  Montpelier,  in  the  county  of  Washington,  did  unlaw- 
fully combine,  conspire,  confederate  and  agree  together  to 
prevent,  hinder  and  deter,  by  violence,  threats  and  intimida- 
tion, one  Jacob  McClure,  then  and  there  being  a  stonecutter 
by  trade  and  occupation,  in  the  employment  of  the  Wetniore 
&  Morse  Granite  Company,  of  Montpelier  aforesaid,  a  corpo- 


STATE  V.  DYER  ET  AL. 


229 


ration  then  and  there  being  and  existing  by  law,  from  obtain- 
in^  work  or  employment,  or  continuing  in  his  said  work  and 
employment,  at  his  said  trade  or  occupation,  in  the  said  shops 
of  the  said  Wetmore  &  Morse  Granite  Company,  of  Montpelier 
aforesaid,  or  in  any  other  shops  or  works  for  the  cutting  or 
manufacture  of  granite  work,  with  the  malicious  and  unlawful 
intent  of  them,  the  said  Josiah  B.  Dyer,  Thomas  Quinlan, 
Frank  Morrill,  Patrick  Morrison,  Peter  Ilernon,  E.  D.  Sher- 
burne, H.  P.  Sylvester,  Thomas  Hocking  and  Alex.  Cruick- 
shank  by  said  violence,  threats  and  intimidation,  to  prevent  the 
said  Jacob  McClure  from  obtaining  work  or  employment  at 
his  said  trade  and  occupation  in  the  shops  and  works  of  the 
said  Wetmore  &  Morse  Granite  Company,  of  Montpelier,  afore- 
said, or  in  any  other  shops  or  works  for  the  cutting  or  manu- 
facture of  granite  work." 

Second  count :  "  That  Josiah  B.  Dyer,  Thomas  Quinlan,  of 
Barre,  in  the  county  of  Washington,  and  Frank  Morrill, 
Patrick  Morrison,  Peter  Ilernon,  E.  D.  Sherburne,  H.  P.  Syl- 
vester, Thomas  Hocking,  and  Alex.  Cruickshank,  of  Mont- 
pelier, in  the  county  of  Washington,  on  the  22d  day  of 
November,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  eighty-nine,  at  Montpelier,  in  the  county  of  Washington, 
being  granite  cutters  by  occupation,  not  being  content  to  allow 
other  granite  cutters  to  pursue  their  avocations  and  employ- 
ment wherever  they  wished,  and  oh  whatever  terms  might  be 
agreed  upon  between  said  other  granite  cutters  and  their  em- 
ployers, but  contriving  and  unjustly  and  unlawfully  intending 
to  destroy  the  effect  of  free  competition  in  the  price  and  value 
of  labor,  to  coerce  and  constrain  said  other  granite  cutters, 
and  to  compel  said  other  granite  cutters  to  join  and  become 
members  of  a  branch  of  the  National  Stonecutters'  Union,  an 
organization  then  and  there  organized  and  existing  at  Mont- 
pelier aforesaid,  and  to  prevent  said  other  granite  cutters  from 
obtaining  work  at  their  said  trade  and  occuf)ation,  did  on  the 
22d  day  of  November,  A.  D.  1889,  at  Montpelier  aforesaid, 
with  force  and  arms,  combine,  conspire,  confederate,  and  un- 
lawfully agree  together,  and  did  enter  into  an  organization 
and  compact  whereby  it  was,  among  other  things,  provided, 
that  no  person  or  persons  not  members  of  the  said  branch  of 
the  said  stonecutters'  union  should  be  allowed  to  work  in  the 
shops  of  the  Wetmore  &  Morse  Granite   Company  of  Mont- 


♦  J  m 


I M 


v  i 


230 


AMERICAN  CRIMINAL  REPORTS. 


pelier  aforesaid,  or  in  any  other  shop  or  works  for  the  catting 
of  granite  or  manufacturing  of  granite  work.  And  the  said 
Josiah  B.  Dyer,  Thomas  Quinlan,  Frank  Morrill,  Patricli 
Morrison,  Peter  Hernon,  E.  D.  Sherburne,  H.  P.  Sylvester, 
Thomas  Hocking,  and  Alex.  Cruickshank,  in  the  pursuance  of 
the  said  unlawful  conspiracy,  combination,  and  compact,  Avith 
the  intent  by  violence,  threats,  and  intimidation  to  prevent 
one  Jacob  McUlure,  then  and  there  being  a  stonecutter  by 
trade  and  occupation,  from  obtaining  or  continuing  work  at 
his  occupation  of  granite  cutting  in  the  said  shops  or  works  of 
the  said  "Wetmore  &  Morse  Granite  Company,  of  Montpelier 
aforesaid,  or  in  any  other  shops  or  works  for  the  cutting  of 
granite,  did  then  and  there  threaten  and  say  to  Jacob  McClure, 
who  was  then  and  there  a  laborer  and  workman  aa  a  granite 
cutter  in  the  shops  and  works  of  the  said  Wetmore  &  Morse 
Granite  Company,  of  Montpelier  aforesaid,  that  if  he,  the  said 
Jacob  McClure,  did  not  join  and  become  a  member  of  a  branch 
of  the  National  Stonecutters'  Union,  then  and  there  organized 
and  existing  at  said  Montpelier,  that  they,  the  said  Josiah  E. 
Dyer,  Thomas  Quinlan,  Frank  Morrill,  Patrick  Morrison,  Peter 
Ilernon,  E.  D.  Sherburne,  H.  P.  Sylvester,  Thomas  Hocking, 
and  Alex.  Cruickshank,  and  others  unknown  to  the  state's  at- 
torney, would  organize  a  strike  against  the  said  Jacob  McClure 
in  the  shops  and  works  of  the  said  Wetmore  &  Morse  Granite 
Company,  of  Montpelier  aforesaid,  and  would  prevent  him, 
the  said  Jacob  McClure,  from  obtaining  work  at  his  said  trade 
of  stonecutting  in  said  shops  of  the  said  Wetmore  &  Morse 
Granite  Company,  of  Montjielier  aforesaid,  or  in  any  otlier 
shops  or  works  where  granite  cutting  or  manufacturing  was 
carried  on.  And  the  said  Jacob  McClure  refusing  then  and 
there  to  become  a  member  of  the  said  branch  of  the  National 
Stonecutters'  Union,  the  said  Josiah  B.  Dyer,  Thomas  Quinlan, 
Frank  Morrill,  Patrick  Morrison,  Peter  Hernon,  E.  D.  Sher- 
burne, H.  P.  Sylvester,  Thomas  Hocking,  and  Alex.  Cruick- 
shank did  then  and  there  threaten  and  say  to  the  said  Wet- 
more &  Morse  Granite  Company,  of  Montpelier,  aforesaid,  that 
unless  the  said  Jacob  McClure  was  turned  away  from  his  em- 
ployment as  a  granite  cutter  in  the  said  shops  and  works  of 
the  said  Wetmore  &  Morse  Granite  Company,  of  Montpelier, 
aforesaid,  they,  the  said  Josiah  B.  Dyer,  Thomas  Quinlan, 
Frank  Mo.Till,  Patrick  Morrison,  Peter  Hernon,  E.  D.  Sher- 


STATE  V.  DYER  ET  AL. 


231 


burne,  II.  P.  Sylvester,  Thomas  Hocking,  and  Alex.  Cruick- 
shank  would  organize  a  strike  against  the  said  Jacob  McClure, 
and  would  prevent  the  said  Wetmore  &  Morse  Granite  Com- 
pany, of  Montpelier,  aforesaid,  from  obtaining  or  employing 
any  workmen  or  laborers  in  their  said  shops  or  works.  And  by 
means  of  said  sayings  and  threats  the  said  Josiah  B.  Dyer, 
Thomas  Quinlan,  Frank  Morrill,  Patrick  Morrison,  Peter  Iler- 
non,  E.  D.  Sherburne,  H.  P.  Sylvester,  Thomas  Hocking,  and 
Alex.  Cruickshank  did  then  and  there  affright,  drive  away,  and 
prevent  the  said  Jacob  McClure  from  obtaining  and  continuing 
his  employment  and  labor  in  the  said  shops  or  works  of  the 
said  Wetmore  &  Morse  Granite  Company,  of  Montpelier 
aforesaid.  And  so  the  said  state's  attorne}'^,  on  his  oath  afore- 
said, says  that  the  said  Josiah  B.  Dyer,  Thomas  Quinlan, 
Frank  Morrill,  Patrick  Morrison,  Peter  Hernon,  E.  D.  Sher- 
burne, H.  P.  Sylvester,  Thomas  Hocking,  and  Alex.  Cruick- 
shank, did  then  and  there,  in  manner  aforesaid,  by  threats, 
intimidation,  and  the  unlawful  and  grievous  conspiracy  afore- 
said carried  into  execution  as  aforesaid,  prevent  the  said  Jacob 
McClure  from  obtaining  and  prosecuting  his  said  employment 
and  work  of  stonecutting  in  the  said  shops  and  works  of  the 
said  Wetmore  &  Morse  Granite  Company,  of  Montpelier,  afore- 
said, or  in  any  other  shop  or  works  for  the  manufacture  or 
cutting  of  granite."  The  other  points  decided,  sufficiently  ap- 
pear in  the  opinion. 


if^'^lfl?'- 


'i    if" 


/.  P.  Lamson,  for  the  State. 

Dillhiffham,  Iluse  &  Ilovoland,  Z,  C.  Stanton^  John  H.  Sen- 
ter  and  W.  II.  Loi'd,  for  respondents. 

Tyler,  J.  It  is  contended  that  the  information  is  insuffi- 
cient. Neither  count  is  under  section  4226,  R.  L.  That  sec- 
tion provides  that  "  a  person  who  threatens  violence  or  injury 
to  another  person  with  intent  to  prevent  his  employment 
in  a  mill,  manufactory,  shop,  quarry,"  etc.,  shall  be  pun- 
ished, etc.  It  evidently  is  not  directed  to  cases  where  two  or 
more  persons  act  in  concert,  as  in  sections  4236  and  4237.  Nor 
is  either  count  under  section  4227,  which  is  directed  against 
persons  who,  by  threats,  intimidation  or  force,  drive  men  from 
their  employment,  with  intent  to  prevent  the  prosecution  of 
work  in  such  mill,  etc.    The  second  count  avers  that  the 


'^■^;-& . 


i'  i' 


il 


232 


AMERICAN  CRIMINAL  REPORTS. 


respondents  threatened  the  Wetmore  &  Morse  Granite  Com- 
pany that  they  would  prevent  its  obtaining  workmen  if  it  did 
not  discharge  McClure,  but  does  not  aver  that  the  tlireats  were 
made  with  such  an  intent  as  is  necessary  to  bring  a  case  within 
section  4227.  Conspiracy  is  an  offense  at  common  Ian'. 
Bishop  says  it  is  connected  with  every  form  of  wrong-doinf 
cognizable  by  the  law;  that  it  is  the  corrupt  agreeing  together 
of  two  or  more  persons  to  do  by  concerted  action  something 
unlawful,  either  as  a  means  or  an  end.  The  unlawful  act  must 
either  be  such  as  would  be  indictable  performed  by  one  alone, 
or,  not  being  such,  be  of  a  nature  particularly  adapted  to  injure 
the  public,  or  some  individual,  by  reason  of  the  combination. 
2  Bish.  Cr.  Proc,  §  166;  2  Bish.  Cr.  Law,  §  171.  Powers,  J., 
in  State  v.  Stewart,  59  Vt.  273 :  "  The  reports,  English  and 
American,  are  full  of  illustrations  of  the  doctrine  that  a  com- 
bination of  two  or  more  persons  to  effect  an  illegal  purpose, 
either  by  legal  or  illegal  means,  whether  such  purpose  be  illegal 
at  common  law  or  by  statute;  or  to  effect  a  legal  purpose  bv 
illegal  means,  whether  such  means  be  illegal  at  common  law 
or  by  statute — is  a  common  law  conspiracy.  Such  combina- 
tions are  equally  illegal  whether  they  promote  objects  or  adopt 
means  that  are  per  se  indictable,  or  promote  objects  or  adopt 
means  that  'avq perse  oppressive,  immoral  or  wrongfully  preju- 
dicial to  the  rights  of  others,"  and  cites,  among  other  authorities, 
2  Russ.  Grimes,  "  that  all  conspiracies  whatever,  wrongfully 
to  prejudice  a  third  person,  are  highly  criminal  at  common 
law."  See  notes  to  this  case  in  59  Am.  Rep.  710;  Hex  v. 
Mawhrey,  6  Term  R.  636.  The  counts  of  this  information  are 
in  substantial  compliance  with  the  common  law  precedents.  2 
Bish.  Cr.  Proc,  §  18.  They  are  in  all  material  respects  like 
those  in  the  indictment  in  State  v.  Stewart  et  als.,  which  were 
held  sufficient  as  setting  out  a  conspiracy  at  common  law. 

Our  statute  (R.  L.,  §  689)  adopts  so  much  of  the  common 
law  of  England  as  is  applicable  to  the  local  situation  and  cir- 
cumstances and  is  not  repugnant  to  our  constitution  and  laws. 
The  main  question  that  arises  upon  this  branch  of  the  case  is 
whether  the  prosecution  could  be  by  inform.-  ^ion,  or  must  be 
by  indictment.  The  respondents'  counsel  ar,^ue  that  conspir- 
acy can  be  charged  only  by  indictment,  as  conviction  thereof 
was  followed  at  common  law  by  villainous  judgment.  The 
ancient  punishment  of  conspiracy  was  that  called  "'  villainous 


STATE  V.  DYER  ET  AL. 


233 


judgment,"  which  was  that  the  offenders  should  lose  the  free- 
dom or  franchise  of  the  law,  so  that  they  should  be  disquali- 
fied as  jurors  or  witnesses,  and  have  their  lands  and  goods 
S'jized  by  the  crown.  3  Chit.  Cr.  Law,  1144.  But  the  author 
says  there  has  been  no  instance  of  the  infliction  of  this  pun- 
ishment since  the  time  of  Edward  III.,  and  that  it  was  punish- 
able, like  any  other  misdemeanor,  at  the  discretion  of  the 
court.  Hex  v.  Spragg  et  al.,  2  Burr.,  997.  In  2  Russ.  Crimes, 
574,  it  is  said  that  this  kind  of  judgment  had  become  obsolete, 
not  having  been  pronounced  for  some  ages.  In  2  Bish.  Cr. 
Law,  §  240,  conspiracy  is  declared  to  be  a  misdemeanor,  even 
in  those  cases  where  its  object  is  the  commission  of  a  felony. 
R.  L.,  §  1618,  provides  that  state's  attorneys  may  prosecute  by 
information  all  crimes  except  capital  and  those  punishable  by 
imprisonment  in  the  state  prison  more  than  seven  years. 
State  V.  Haley,  52  Vt.  470.  The  first  count  charges  a  conspir- 
acy to  prevent  McClure's  obtaining  employment;  the  second, 
the  actual  accomplishment  of  the  purpose;  both  charge  a  con- 
spiracy to  do  acts  unlawful  at  common  law,  by  means  unlawful 
under  the  statute.  State  v.  Stewart  et  als.,  supra.  In  section 
940,  Bish.  Cr.  Law,  it  is  said  that  the  ordinary  and  apj)ropri- 
ate  common  law  punishment  for  a  misdemeanor  is  line  and 
imprisonment,  or  either,  in  the  discretion  of  the  court;  that  it 
is  inflicted  in  all  cases  in  which  the  law  has  not  provided  some 
other  specific  penalty.  Section  4365,  R.  L.,  provides  that 
where  an  offense  is  declared  by  law  to  be  punishable  by 
imprisonment,  and  it  is  not  specified  that  such  imprisonment 
shall  be  in  the  state  prison,  it  shall  be  construed  to  mean  that 
it  shall  be  in  the  house  of  correction.  The  words  "  declared 
by  law"  do  not  necessarily  or  reasonabh' mean  statute  law 
only,  but  include  the  common  law  whenever  it  defines  an 
offense  and  makes  it  punishable  by  imprisonment.  In  this 
view  the  claim  that  prosecution  can  only  be  by  indictment,  is 
not  maintained. 

It  is  a  general  rule  that  the  facts  and  circumstances  which 
constitute  the  crime  must  be  stated  with  such  certainty 
and  precision  that  the  accused  may  judge  whether  they  con- 
stitute an  indictable  offense  or  not,  in  order  that  he  may  demur 
or  plead  to  the  indictment  accordingl}'^,  that  he  may  determine 
the  kind  of  offense  they  constitute,  and  prepare  his  defense; 
and  that  the  court  may  know  what  judgment  to  pronounce 


^1  v.- »-» 


i 


I  HI 


r  i 


1  '' 

i  ' 

234 


AMERICAN  CRIMINAL  REPORTS. 


upon  conviction,  as  Lord  Kenyon  said  in  Hex  v.  Jlolland,  5 
Terra  K.  (507,  that  the  party  accused  may  be  apprised  of  the 
charge  against  which  he  is  to  defend  himself;  that  the  court 
may  know  what  judgment  shall  be  pronounced  according  to 
law;  and  that  posterity  may  know  what  law  is  to  be  derived 
from  the  record.  It  is  elementary  that  an  indictment,  infor- 
mation, or  complaint  must  not  charge  the  accused  disjunctively, 
so  as  to  leave  it  uncertain  what  is  relied  on  as  the  accusation 
against  him.  Thus,  an  indictment  which  alleged  that  the  de- 
fendant made  a  forcible  entry  into  two  closes  of  meadow  or 
pasture  was  held  bad.  Spearfs  Case,  2  EoUe,  Abr.  81.  So  an 
information  which  alleged  that  the  defendant  sold  beer  or  ale 
without  an  excise  license  {T/ie  King  v.  North,  6  Dowl,  &  R.  143), 
and  where  one  was  charged  with  committing  a  certain  nui- 
sance,or  causing  it  to  be  committed  {Rex  v.  Stouyhton,  2  Strange, 
900).  In  Hex  v.  Stocker,  1  Salk.  371,  an  indictment  for  forg- 
ing or  causing  to  be  forged,  etc.,  was  held  ill.  But  Lord  Mans- 
field said  in  Rex  v.  Mkldlehurst,  1  Jiurrows,  400 :  "  Upon 
indictments,  it  has  been  so  determined  'that  an  alternative 
charge  is  not  good '  (as '  forged  or  caused  to  be  forged ' ),  though 
one  only  need  be  proved  if  laid  conjunctively  (as  '  forged  and 
caused  to  be  forged ').  But  I  do  not  see  the  reason  of  it.  The 
substance  is  exactly  the  same;  the  defendant  must  come  pre- 
pared against  both;  and  it  makes  no  difference  to  him  in  any 
respect."  A  forcible  illustration  of  a  disjunctive  charge  is 
Ex  parte  Pain,  5  Barn.  &  C.  251,  11  E.  C.  L.  450.  The  indict- 
ment was  under  a  statute  which  prohibited  -three  kinds  of 
casks  from  being  found  attached  to  certain  vessels  in  the  Irish 
or  British  Channels  in  certain  circumstances :  (1)  Those  of 
the  kind  used  for  smuggling  spirits;  (2)  those  intended  to  be 
so  used;  (3)  those  fit  or  adapted  for  that  purpose.  The  allega- 
tion was  that  said  vessel  had  attached  20  casks,  "of  the  sort 
and  description  used  or  intended  to  be  used  for  the  smuggling 
of  spirits."  Held  that  it  was  not  alleged  that  the  casks  an- 
swered any  one  of  the  three  descriptions,  but  one  or  another 
of  them,  and  that  the  allegation,  being  in  the  alternative,  was 
defective.  Eex  v.  Morley,  I  Younge  &  J.  221,  was  under  a 
statute  which  enacted  that  no  foreign  silks  or  velvets  should 
be  imported  or  brought  into  Great  Britain  upon  penalty,  etc. 
The  averment  in  the  count  upon  which  the  trial  was  had  was 
"  that  the  defendant  imported  or  caused  to  be  imported,"  etc. 


STATE  V.  DYER  ET  AL. 


235 


This  was  held  bad  for  uncertainty.  Several  similar  cases 
where  the  indictments  were  held  ill  are  referred  to  in  the 
opinion;  as  Winjield  v.  Jefferys^  1  Ld.  Raym.  284,  "  for  selling 
live  cattle,  or  causing  them  to  be  sold; "  Attorney  General  v. 
Farr,  4  Price,  122,  where  the  defendant  was  charged  "  with 
having  been  assisting  or  otherwise  concerned  in  unshipping 
smuggled  goods;"  Rex  v.  Stocker,  5  Mod.  137,  where  the 
charge  was  "  for  making  and  fabricating,  or  causing  to  be  made 
and  fabricated,  a  bill  of  lading."  It  was  said  by  the  court  in 
that  case  that  "  it  is  true,  in  a  strict  sense,  that  he  who  causeth 
a  forgery  to  be  done  is  a  forger  himself,  but  then  it  ought 
to  be  so  laid  in  the  indictment ;"  that  one  was  the  proper  act 
of  the  party,  the  other  not,  and  the  circumstances  might  re- 
quire a  distinct  consideration  as  to  the  fine.  In  Davy  v.  Baher, 
4  Burrows,  2471,  the  declaration  was  that  the  defendant  re- 
ceived a  gift  or  reward,  and  was  held  bad,  it  not  stating  of 
what  the  gift  or  reward  consisted.  In  all  these  cases  there  is 
uncertainty  in  respect  to  the  act  with  which  the  respondents 
are  charged.  GenerjiUy  the  charge  is  in  the  alternative,  as 
that  the  respondent  did  one  thing  or  another  thing,  or  that  he 
(lid  a  certain  thing  or  procured  it  to  be  done.  In  Com.  v.  Gray, 
2  Gray,  501,  the  complaint  was  that  the  defendant,  without 
license,  etc.,  did  sell  spirituous  or  intoxicating  liquor  to  one 
White :  Held  that,  as  the  complaint  left  it  uncertain  whether 
the  defendant  was  charged  with  having  sold  spirituous  liquor, 
or  intoxicating  liquor  not  spirituous,  it  Avas  insufiicient  to  sus- 
tain a  judgment.  But  where  a  person  was  charged  with  hav- 
ing in  his  possession  ten  counterfeit  bank  bills  or  promissory 
notes,  with  intent,  etc.,  the  indictment  was  held  sufficient  upon 
the  ground  that  "  promissory  note  "  was  used  merely  as  ex- 
planatory of  "  bank  bill,"  and  meant  the  same  thing.  Brown 
V.  Com.,  8  Mass.  59.  In  State  v.  Gilbert,  13  Vt.  647,  an  infor- 
mation was  held  sufficient  which  alleged  that  the  defendant 
feloniously  stole, took  and  carried  away  a  mare  of  a  bay  or  brown 
color,  the  court  holding  that  it  was  unnecessary  to  describe 
the  color,  and  that  the  colors  named  were  the  same.  In  this 
case  the  material  averments  in  the  first  count— that  the  re- 
spondents entered  into  a  conspiracy  together,  that  the  conspir- 
acy was  against  McClure,  that  the  purpose  was  to  be  accom- 
plished by  threats,  intimidation,  and  violence — are  single  and 
definite.    But  it  is  contended  that  the  averment  that  the  cou- 


U|S 


236 


AJIERICAN  CRIMINAL  REPORTS. 


spiracy  was  to  prevent  McClure  "from  obtaining  work  or  em- 
ployment  or  continuing  in  his  said  work  and  em))loyment "  is 
alternative  and  bad.  As  it  is  alleged  that  McClure  was  in  the 
employment  of  that  corporation  when  the  conspimcy  was 
formed,  "obtaining "employment  in  its  shops  and  "continu- 
ing" employment  there  are  synonymous  terms.  The  two 
words  convey  a  conjunctive  and  not  a  disjunctive  meaning. 
Any  other  signification  than  that  the  conspiracy  was  to  pre- 
vent McClure  from  having  employment  in  those  shops  would 
be  forced  and  unnatural. 

With  the  addition  "  or  in  any  other  shops  or  works,"  etc., 
the  charge  is  of  a  conspiracy  to  drive  McClure  out  of  his 
employment  as  a  stonecutter.  The  conspiracy  is  the  gist  of 
the  offense  here  charged.  Com.  v.  Judd,  2  Mass.  337;  Com. 
V.  Shedd,  7  Cush.  5U;  People  v.  Mather,  4  Wend.  259.  The 
same  reasoning  applies  to  the  second  count,  which  contains 
the  further  averments  of  threats  to  McClure  to  drive  him  out 
of  employment  unless  he  would  join  the  respondents'  branch 
of  the  union;  of  threats  to  the  corporation  that  unless  it  dis- 
charged him  from  its  service  they  would  prevent  its  obtaining 
any  workmen;  and  that  it  did  drive  McClure  out  of  the 
employment  of  the  corporation.  Both  counts  contain  unnec- 
essary words,  but  the  material  allegations  are  not  uncertain. 
While  the  rule  requires  that  every  offense  shall  be  laid  with 
reasonable  certainty — "  certainty  to  a  certain  intent  in  gen- 
eral " — both  counts  apprised  the  respondents  with  sufficient 
certainty  of  the  offense  of  which  they  were  accused.  Greater 
strictness  than  this  "  would  tend  to  render  the  law  nugatory 
and  ineffectual,  and  destroy  or  evade  the  very  end  of  it." 

The  respondents'  counsel  contend  that  the  testimony  of 
Eagan  and  McDonald  was  improperly  admitted.  It  con- 
sisted of  a  conversation  had  between  those  witnesses  and  Dyer 
and  Morrison,  two  of  the  respondents,  on  the  Sunday  next 
after  the  acts  complained  of.  The  evidence  of  the  State  had 
tended  to  show  that  the  respondents  had  driven  McClure  from 
the  employment  of  the  Wetmore  &  Morse  Granite  Company, 
and  that  on  Saturday  of  that  week  he  engaged  to  do  some 
granite  carving  for  Eagan;  that  on  Sunday,  Dyer,  McDonald 
and  Morrison  were  at  Eagan's  shop  to  inquire  about  the  agree- 
ment between  Eagan  and  McClure;  that  Eagan  told  Dyer  and 
Morrison  of  the  agreement  he  had  made;  that  McClure  had 


'.r 


STATE  V.  DYER  ET  AL. 


237 


afterward  told  him  of  the  trouble  he  had  had  at  the  "Wetmoro 
&  Morse  shops;  that  he  had  made  inquiry  and  ascertained  that 
there  would  be  trouble  if  McClure  undertook  to  cut  stone  for 
him,  and  that  he  had  canceled  the  agreement.  Eagan  then 
testified  to  a  conversation  that  followed  as  to  the  reason  why 
McClure  had  not  joined  the  union,  and  why  he  had  been  forced 
into  his  then  present  position.  This  evidence  could  not  have 
been  excluded,  as  it  tended  to  show  that  Dyer  and  Morrison 
were  connected  with  the  alleged  offense.  We  also  think  that 
the  conversation  was  so  closely  connected  with  the  main  occur- 
rence that  it  was  not  a  mere  narrative  of  a  past  event.  It  was 
concomitant  with  the  principal  act  and  so  connected  with  it 
that  it  might  be  regarded  as  the  result  and  consequence  of  the 
co-existing  motives  of  all  the  respondents.  1  G-reenl.  Ev., 
§  110.  The  testimon}'^  of  Hornon  was  only  to  the  effect  that 
at  Eagan's  request  he  made  inquiry  whether  the  retention  of 
McClure  by  Eagan  would  make  trouble,  and  that  he  reported 
to  the  latter  the  result,  which  was  testified  to  by  Eagan.  It 
amounted  merely  to  this,  that  Hernon  was  the  means  through 
which  Eagan  ascertained  a  certain  fact.  It  was  immaterial 
how  Eagan  ascertained  the  fact,  or  whether  he  ascertained  it 
at  all,  or  whether  he  retained  or  dismissed  McClure  from  his 
service.  The  point  was  that  D^'er  and  Morrison  were  at 
Eagan's  making  inquiry  about  his  employment  of  a  non-union 
man,  and  in  the  same  connection  discussing  the  subject  of 
McClure's  dismissal  from  the  Wetmore  &  Morse  shops. 

The  State  was  entitled  to  the  testimony  of  Deputy  SheriflF 
Camp.  It  tended  to  show  that  while  Morrison  was  under  ar- 
rest he  made  certain  admissions  to  the  officer  about  his  con- 
nection with  the  union,  the  office  he  held  in  it,  and  his  action 
in  respect  to  McClure.  It  is  true  that  he  claimed  to  have  acted 
under  the  instruction  of  other  respondents,  and  that  he  was  not 
in  fault;  but  so  far  as  his  statements  tended  to  inculpate  himself 
they  were  admissible.  So  far  as  they  tended  to  criminate  others, 
the  jury  were  carefully  instructed  as  follows :  "  But  the  dec- 
larations of  one  of  the  respondents,  not  made  in  the  prosecution 
of  the  undertaking,  but  after  its  completion,  are  not  evidence 
against  the  others.  For  instance,  the  testimony  of  the  witness 
Camp  as  to  what  was  said  to  him  by  Morrison,  is  to  be  con- 
sidered only  as  affecting  Morrison,  and  is  not  evidence  against 


I  il 


I    ta 


Mi:  \ 


til  ^MAttataitMi 


238 


AMERICAN  CRIMINAL  REPORTS. 


til 


the  others."    This  was  a  correct  instruction  in  respect  to  the 
use  they  were  to  make  of  this  evidence. 

At  the  conclusion  of  the  testimony  the  iesfioivlents'  counsel 
made  the  following  motion:  "We  make  a  formal  motion 
asking  for  a  direction  from  the  court  directing  an  acquittal 
of  each  one  of  the  respondents  upon  the  ground  that  there 
is  no  evidence  to  justify  their  conviction  under  either  of  the 
counts  in  the  information,"  which  motion  was  overruled. 
It  is  now  claimed  that  it  should  have  been  sustained  on  two 
grounds :  (1)  That  the  real  name  of  the  organization  to  which 
the  respondents  belonged  was  the  Granite  Cutters'  National 
Union,  whereas  it  was  called  in  the  second  count  in  the  infor- 
mation the  National  Stonecutters'  Union;  (2)  that  there  was  no 
evidence  tending  to  connect  Dyer  with  a  conspiracy  against 
McClure,  and  that  he  should  have  been  discharged.  The  mo- 
tion could  not  have  been  sustained  on  the  first  ground  because 
it  failed  to  call  the  attention  of  the  court  to  the  misnomer. 
The  court  was  not  bound  to  have  knowledge  of  the  name  of 
the  organization.  It  is  well  settled  that  a  motion  for  a  verdict 
should  state  the  precise  grounds  on  which  it  is  based,  or  the 
court  may  well  disregard  it.  State  v.  Nulty,  67  Vt.  543.  The 
defect  was  not  of  substance,  and  the  variance  was  so  immate- 
rial that  it  might  have  been  cured  by  amendment,  had  the  at- 
tention of  the  court  been  directed  to  it. 

It  is  first  pointed  out  in  this  court,  which  is  equivalent  to 
filing  the  motion  here.  The  other  question  must  be  deter- 
mined by  the  evidence.  That  introduced  by  the  State  tended 
to  show  the  following  facts :  Thnt  there  was  an  organization 
called  the  Granite  Cutters'  National  Union,  with  a  branch  in 
every  place  where  any  considerable  number  of  granite  cutters 
were  at  work;  that  there  were  branches  at  Barre  and  Mont- 
pelier.  The  organization  had  a  constitution  and  by-laws,  a 
president,  secretary,  and  an  executive  committee,  which  also 
had  a  secretary.  The  executive  committee  held  meetings  at 
regular  times,  and  kept  a  record  of  its  doings.  Each  branch 
also  had  its  officers,  rules  and  regulations,  and  held  meetings. 
All  the  respondents  were  members  of  the  organization. 
McDonald  was  president,  Dyer  was  secretary — one  of  the  ex- 
ecutive committee  and  its  secretary;  and  his  office  in  Barre, 
where  a  paper  was  published,  was  the  headquarters  of  the 
organization.    Morrison  was  an  officer  called  "  shop  steward," 


STATE  V.  DYER  ET  AL. 


239 


whoso  duty  was  to  kcop  a  record  of  all  non-union  men  on 
viTorks  whore  ho  was  employed,  and  present  their  names  at  the 
branch  meeting.  It  was  also  his  duty  to  notify  every  non- 
union man  to  report  at  such  meeting  and  take  the  obligations. 
If  he  refused,  action  would  be  taken  against  him  which  would 
result  in  his  becoming  a  member  or  being  obliged  to  leave  his 
employment.  The  person  for  whom  the  non-union  man  worked 
would  also  bo  notified,  and  action  bo  taken  against  him  if  he 
retained  such  a  man  in  his  service.  Morrill,  Morrison  and 
Sherburne  worked  at  the  Wetmore  &  Morse  shops.  They  be- 
longed to  the  Montpelier  branch  and  attended  its  meetings, 
and  Morrill  sometimes  presided.  About  October  15,  18S0, 
?.TrClure,  who  was  a  granite  cutter,  and  non-union,  went  to 
work  in  the  Wetmore  &  Morse  shops,  and  continued  to  work 
there  till  November  21st,  boarding  at  the  same  place  with 
Morrill  and  Sherburne.  Morrison  soon  called  on  him  and  in- 
formed him  that  ho  should  have  to  report  him.  McClure  gave" 
reasons  for  not  joining.  In  about  a  week  Morrison  again  called 
on  him,  told  him  he  had  laid  his  case  before  the  meeting  of  the 
branch,  which  had  directed  him  to  notify  McClure  that  he 
must  report  at  their  hall  at  the  next  meeting,  on  November 
20th,  and  that  if  he  failed  to  report  he  would  make  him 
trouble.  McClure  wrote  a  letter  for  Morrison  to  read  at  the 
meeting,  in  which  he  stated  reasons  for  not  joining,  and  offered 
t"  pay  the  same  amount  as  if  he  were  a  meml)er.  On  No- 
iiber  21st,  Morrison  notified  McClure  that  his  case  had  been 
considered  at  the  meeting,  and  that  it  had  been  unanimously 
voted  "that  he  had  got  to  join  the  union  that  day  at  12 
o'clock;"  that  Morrill,  as  president  pro  tempore,  would  admin- 
ister the  obi  -ation  or  oath  to  him;  and  that  if  he  failed  to 
report,  action  would  be  taken  against  him,  and  a  strike  organ- 
ized against  him.  About  11  o'clock  that  day  Morrison  again 
called  on  him  and  gave  him  a  final  choice  between  taking  the 
obligation  <  being  driven  from  the  works.  On  the  same  day 
Morrill  and  Sherburne  told  him,  in  substance,  that  he  would 
have  to  join  or  quit  work.  There  were  other  conversations 
between  Morrison,  Morrill,  Sherburne  and  McClure,  to  the 
effect  that  unless  ho  joined,  they  would  take  action  agtainst  him; 
that  they  would  strike  and  demand  his  discharge,  and  they 
would  not  allow  him  to  work.  McClure  refused  to  join,  and 
on  November  22d  quit  his  employment.    The  State's  evidence 


ll   ;'! 


2:10 


AMERICAN  CRIMINAL  REPORTS. 


'i  i 


further  tended  to  show  that  Morrison  procured  a  meeting  of 
the  executive  committee  to  be  held  at  Barre  on  Saturday 
evening,  November  23d;  that  it  was  held  to  investigate  Mc- 
Clure's  case;  that  Morrison  made  a  statement  of  the  trouble 
with  the  latter,  of  McClure's  letter  to  the  meeting,  of  the  meet- 
ing held  at  noon  of  the  22d  at  the  shops,  and  that  while  it  was 
in  session  word  came  that  McClure  "  had  packed  up  and  gone; " 
that  Dyer  was  present  at  this  meeting,  and  recox'ded  its  pro- 
ceedings, and  he  and  McDonald  were  appointed  to  go  to  ]\Iont- 
pelierthe  next  day  to  investigate;  that  they  went  accordingly, 
and  had  the  interview  with  Eagan  before  referred  to;  also 
with  the  secretary  of  the  Montpelier  branch.  The  evidence 
did  not  tend  to  show  that  Dyer  made  any  threats  to,  or  liud 
any  communication  with  McClure,  yet  he  was  a  prominent 
officer  in  .an  organization  Avhose  purpose  was  to  comf»el  all 
stonecutters  to  become  members  or  leave  their  employment. 
Ilis  presence  as  such  officer  at  the  meeting  of  November  23d; 
his  acceptance  of  the  appointment,  with  McDonald,  to  visit 
ISIontpelier  the  next  day  and  "  investigate; "  his  visit  on  Sun- 
day and  interviews  with  Eagan,  Rice  and  others — were  acts 
following  so  closely  upon  the  action  taken  against  McClure  on 
Friday  that  they  were  a  part  of  the  res  yestm  of  the  offense 
charged. 

The  motion  in  arrest  on  the  ground  of  the  insufficiency  of 
the  information  has  already  been  considered. 

Judgment  that  there  was  no  error  in  the  proceedings  of  the 
county  court,  and  that  the  respondents  take  nothing  by  their 
exceptions. 


Note. — Combinations  among  workmen — Lawful  and  unlatv/id  means. — 
Mr.  Justice  Gaines,  an  able  jurist,  in  the  case  of  Queen  Ins.  Co.  et  al.  v. 
State  ex  rel.  A  tty.  Geueral,  86  Tex.  250,  in  the  course  of  an  elaborate  opinion, 
in  whicli  this  and  similar  subjects  are  discussed,  says  : 

"  Combinations  among  workingmen,  to  increase  or  maintain  their  wagts 
by  unlawful  means,  are  unlawful.  But  are  such  combinations  unlawful 
when  the  only  means  resorted  to  to  accomplish  their  objects  is  a  refusal,  on 
part  of  the  parties  to  the  agreement,  to  accept  employment  at  a  lower  rate 
of  wages  ti  .11  liat  designated  in  the  contract  ?  This  is  the  next  question 
for  determination,  and  it  is  not  without  difficulty.  In  treating  of  criminal 
conspiracies,  Mr.  Bishop  says  :  "  Whatever  the  language  of  some  of  the  old 
cases,  no  lawyer  of  the  present  day  would  hold  it  indictable  for  men  simply 
to  associate  to  promote  their  own  interests,  or  speciflcaJly  to  raise  their 
wages.  If  the  means  adopted  were  mutual  improvement  of  their  mental  or 
physical  powers,  mutual  instruction  in  their  methods  of  doing  their  work, 


STATE  V.  F/YER  ET  AL. 


211 


mutual  inquiring  and  imparting  inibrmation  as  to  the  wages  paid  in  otlicr 
localities,  or  anything  else  of  a  like  helpful  nature,  severally  enabling  the 
nietubers  to  obtain  higher  wages,  nothing  could  be  more  commondable, 
and  nothing  further  from  the  inhibition  of  the  law;  or,  if  employers  should 
combine  simply  to  reduce  wages,  not  proposing  any  unlawful  means,  per- 
haps we  miglit  not  so  muci.  oommend  them,  yet  still  they  would  stand 
under  no  disfavor  from  the  law — the  result  of  which  is  that  a  conspiracy  to 
enhance  or  reduce  wages  is  rot  indictable  per  se,  while  yet  it  may  be  so 
by  reason  of  proposed  unlawful  means."    2  Bish.  Crim.  Law,  §  283,  subd. 

The  author  then  proceeds  to  consider  certain  means  which  have  been 
determined  to  be  unlawful,  in  which  a  mere  agreement,  by  men  not  already 
under  contract,  not  to  work  unless  for  a  certain  rate  of  wages,  does  not 
seem  to  be  included.  But  the  matter  seeiiid  to  be  involved  in  some 
obscurity. 

In  a  previous  section  the  author  cites  the  rcmarlfo  o!!  dlstin^islied  En- 
glish iudges,  including  Lord  Mansfield,  to  the  c.Tcct  that  such  agreements 
are  unlawful  in  themselves,  but  adds:  "In  a  latcrca'ic.Earlc,  J.,  per- 
haps with  a  view  to  conforming  to  the  statute  oi  6  Geo.  IV.,  c.  129,  §  4,  yet 
distinctly  qualifying  the  words  of  Lord  Mansfield,  stated  it  as  settled  that 
workmen  are  at  liberty,  while  they  are  peifoctly  fico  from  engage- 
ments, and  have  the  option  of  entering  into  e!iip!oymenfc  or  not,  to  agi'ee 
among  themselves  to  say,  '  We  will  not  go  into  any  employ  unless  we  can 
get  a  certain  rate  of  wages.' "  Mr.  Freeman,  in  his  note  to  the  case  of 
People  V.  Fisher,  14  Wend.  9,  says  :  "  Recent  decisions  in  England,  and 
the  spirit  now  prevailing  there  and  in  this  country,  of  giving  encoui'age- 
ment  to  workmen  in  their  endeavors  to  associate  themselves  into  organiza- 
tions for  their  mutual  benefit,  have  settled  beyond  question  that  unem- 
ployed workmen  may  unite,  and  agree  not  to  work  unless  for  a  certain 
price.  This  is  a  plaui  right,  upon  which  no  doubt  ought  ever  to  have  ex- 
isted." 28  Amer.  Dec.  508.  The  learned  annotator  then  quotes :  "  The 
law  is  clear  that  workmen  have  a  right  to  combine  for  their  own  protec- 
tion, and  to  obtain  such  wages  as  they  may  choose  to  agree  to  demand;" 
citing  Reg,  v.  Roidands,  5  Cox  Crim.  Cas.  436,  460. 

In  Com.  V,  Hunt,  4Metc.  (Mass.)  Ill,  it  was  held  by  the  Supreme  Court  of 
Massachusetts  that  an  association  among  journeymen  bootmakers,  in  which 
they  bound  themselves  not  to  work  for  any  person  who  employed  one  not 
a  member  of  the  association,  was  not  indictable  at  common  law.  Follow- 
ing that  decision,  that  court  also  held,  in  Bowen  v.  Mntheson,  14  Allen,  499, 
that  an  agreement  among  certain  defendants  by  which  they  sought  to  com- 
pel the  plaintiff,  a  shipping  master,  among  other  things,  to  ship  men  from 
them  at  an  established  rate  of  wages,  was  not  illegal,  and  did  not  give  a 
ground  of  action,  although  the  plaintilT's  business  had  been  damaged  by 
the  conspiracy.  So,  also,  in  Carew  v.  Rutherford,  106  Mass.  10,  they  say 
that  "  it  is  no  crime  for  any  number  of  workmen  to  associate  themselves, 
and  agree  not  to  work  for  or  deal  with  certain  men  or  certain  classes  of 
men,  dr  work  under  certain  wages  or  without  certain  conditions."  We 
take  it,  therefore,  that  the  weight  of  authority  is  against  the  proposition 
that  such  a  combination  among  workmen  was  indictable  at  common  law. 

Abandonment  of.  —Where  two  persons  enter  into  a  conspiracy  to  com- 
mit a  murder,  and  the  plan  agreed  on  is  that  ono  of  the  conspirators  shall 
lie  in  wait  in  ambuah  for  their  vlotiiu,  the  maro  doclaratioa  of  the  one  ao 


i'i  \ 


r^ 


I 


242 


AMERICAN  CRIMINAL  REPORTS. 


lying  in  ambush  that  at  one  time  he  mentally  gave  up  the  idea  of  commit- 
ting the  crime,  where  the  evidence  shows  no  act  indicating  an  abandon- 
ment or  chanaje  of  purpose,  and  where  it  clearly  appears  that  the  crime 
was  actually  perpetrated  in  pursuance  of  the  original  conspiracy,  is  not 
sufficient  to  show  an  abandonment  of  the  criminal  design,  and  does  not 
warrant  an  acquittal  of  the  defendant.    State  v.  Gray,  55  Kans.  133. 


Murray  v.  Louisiana. 

(1G3  U.  S.  101.) 

Constitutional  Law:  Excluding  colored  citizens  from  juries — How  right 
protected— Constitutional  right  to  meet  witness  face  to  face. 

1.  Section  641,  Revised  Statutes  of  the  United  States,  does  not  embrace  a 

case  in  which  a  right  is  denied  by  judicial  action  during  a  trial,  or  in 
the  sentence,  or  in  the  mode  of  executing  the  sentence.  For  sucli  de- 
nials, arising  from  judicial  action  after  a  trial  commenced,  the  remedy 
lies  in  the  revisory  power  of  the  higher  courts  of  the  State,  and  ulti- 
mately in  the  power  of  review  which  this  court  may  exercise  over  their 
judgments  whenever  rights,  privileges  or  immunities  claimed  under  con- 
stitutions or  laws  of  the  United  States  are  withheld  or  violated.  The 
denial  of,  or  inability  to  enforce  in  the  judicial  tribunals  of  a  State, 
rights  secured  by  any  law  providing  for  the  equal  civil  rights  of  citi- 
zens of  the  United  States,  to  which  §  641  refers,  and  on  account  of 
which  a  criminal  prosecution  may  be  removed  from  a  State  court,  is, 
primarily,  if  not  exclusively,  a  denial  of  such  rights,  or  an  inability  to 
enforce  them,  resulting  from  the  constitution  or  laws  of  the  State, 
rather  than  a  denial  first  made  manifest  at  and  during  the  trial  of  the 
case. 

2.  The  State  court  of  Louisiana,  on  the  trial  of  the  plaintifif  in  error  for 

murder,  permitted  to  be  read  in  evidence  the  testimony  of  a  witness 
taken  in  the  presence  of  the  accused  at  a  preliminary  hearing,  read 
to  and  signed  by  the  witness,  as  his  attendance  could  not  be  procured. 
The  bill  of  exceptions  did  not  present  the  objection  in  proper  form, 
and  the  court  holds  that  there  is  nothing  in  the  record  which  would 
authorize  this  court  to  convict  the  Supreme  Court  of  Louisiana  of 
error  in  that  behalf. 
8.  Rulings  of  the  court  below,  refusing  writs  of  subpoena  duces  tecum,  held  to 
work  no  injury  to  defendant. 

Error  to  the  Supreme  Court  of  the  State  of  Louisiana. 

In  October,  1894,  in  the  Criminal  District  Court  for  the  Par- 
ish of  Orleans,  State  of  Louisiana,  an  indictment  for  murder 
was  found  against  one  Jim  Murray,  alias  Greasy  Jim.  On  De- 
cember 13, 1894,  the  accused  was  arraigned,  pleaded  not  guilty, 
and  was  remanded  for  further  proceedings. 


MURRAY  V.  LOUISIANA. 


243 


On  January  10,  1895,  Thomas  F.  Maher,  as  attorney  for  the 
accused,  challenged  the  grand  jury  on  the  ground  that  it  was 
not  a  legally  constituted  body,  because  the  jury  commissioner 
jiad  discriminated  against  the  prisoner  on  account  of  his  race 
and  color,  by  having  excluded  from  the  venire  from  which  the 
grand  jury  was  selected  all  colored  men  or  negroes,  which  ac- 
tion was  charged  to  be  in  conflict  with  the  Constitution  and 
laws  of  Louisiana  and  with  the  Constitution  of  the  United 

States. 

To  procure  evidence  to  sustain  his  said  challenge,  the  ac- 
cused, by  his  counsel,  asked  for  a  subpoenu  duces  tecum.,  directed 
to  Francis  C.  Zachaire,  register  of  the  voters  of  the  parish  of 
Orleans,  calling  on  him  lo  furnish  the  total  number  of  voters 
r3gistered  in  the  parish;  the  total  number  of  white  voters  reg- 
istered; the  total  number  of  colored  voters;  the  total  number 
of  whites  and  of  colored  voters  who  could  sign  their  names  at 
the  closing  of  the  registration  office  of  the  parish  previous  to 
the  last  congressional  election,  held  on  November  6,  1894. 
Also  for  a  subpoena  duces  tecum,  addressed  to  the  jury  commis- 
sioners of  the  parish,  commanding  them  to  furnish  the  court, 
on  the  trial  of  the  challenge  to  the  grand  jury,  the  names  and 
residences  of  thirty-five  hundred  citizens  who  appeared  before 
them  in  the  month  of  September,  1894,  for  qualification  as 
jurors,  and  the  names  and  residences  of  the  one  thousand 
citizens  whom  they  qualified  and  placed  in  the  jury  wheel, 
from  which  the  grand  jury,  which  found  the  indictment  in  the 
present  case,  was  drawn.  These  motions  for  subpoenas  were 
indorsed  by  the  minute  clerk  as  follows :  "  Filed  subject  to 
orders." 

On  February  2,  1895,  the  challenge  to  the  grand  jury  came 
on  to  be  heard. 

Apparently  to  save  time,  the  state's  attorney  offered  in  evi- 
dence and  as  part  of  the  present  record  the  evidence  taken  be- 
fore another  section  of  the  court,  in  the  case  of  State  of  Louis- 
iana V.  George  Heard,  on  a  challenge  to  the  grand  jury,  in 
which  similar  grounds  of  challenge  had  been  made.  The 
counsel  for  the  accused,  who  had  also  acted  as  counsel  for 
George  Heard,  made  no  objection  to  the  filing  of  this  evidence, 
but  himself  filed,  as  part  of  the  present  record,  the  assignments 
of  error  and  the  bills  of  exceptions  filed  by  him  in  the  other 
case. 


1 ./' 


.>K 


'"I 


-'  -.-i  i 


I! 


^^^Ilii:'.' 


214 


AMERICAN  CRIMINAL  REPORTS. 


Among  other  things  there  appeared  in  this  evidence  in  the 
case  of  Heard,  and  was  read  to  the  court  in  the  present  case, 
the  return  of  the  registry  clerk,  showing  a  statement  of  regis- 
tered voters  of  the  parish  of  Orleans,  after  the  general  election 
of  November,  1892,  viz.:  Total  number  of  voters,  59,2G2,  of 
whom  there  were  native  white  who  sign,  35,382;  native  born 
who  make  their  mark,  4,571;  foreign  white  who  sign,  8,283, 
and  who  make  their  mark,  1,672;  colored  who  sign,  5,431,  an<l 
who  make  their  mark,  4,223.  This  admitted  record  contained 
the  testimony  of  several  deput}'  sheriflFs,  who  served  jury  sum 
mons,  and  which  went  to  show  that  few  persons  of  color  were 
so  summoned;  also  the  testimony  of  the  three  jury  commis- 
sioners, who  testified  that  colored  persons  were  summoned  to 
appear  before  the  commissioners  to  qualify  as  jurors,  and  that 
there  were  names  of  colored  persons  in  the  jury  wheel  from 
which  this  grand  jury  was  drawn.  They  testified  that  in  tak- 
ing names  from  the  registration  list  the  commissioners  selected 
them  with  reference  to  their  qualification  as  jurors,  without 
regard  to  color;  that  a  great  many  colored  men  were  sum- 
moned, and  there  was  no  discrimination  against  colored  men. 

The  court  held  that  the  plaintiff's  challenge  was  not  sus- 
tained by  the  evidence;  that  while  it  was  undeniable  that  the 
exclusion  from  the  general  service  of  all  people  of  the  African 
race  on  account  of  their  color  would  be  an  unlawful  abridsr- 
ment  of  the  rights  of  such  citizens,  yet  that  the  evidence  did 
not  disclose  such  a  case,  but  showed  that  the  general  service 
was  not  exclusively  made  up  of  the  names  of  white  persons, 
and  that  it  was  clearly  established  that  colored  people  were 
not  excluded  on  account  of  their  race  or  color.  Tlie  challenge 
was  overruled.  To  which  action  of  the  court  the  accused  by 
his  counsel  took  several  exceptions,  which  were  duly  allowed 
and  signed. 

The  defendant  then  by  his  attorney  made  a  motion  to  quash 
the  indictment,  upon  the  allegation  that  act  No.  170  of  the 
acts  of  1894,  under  the  provisions  of  which  the  grand  jury 
which  indicted  the  accused  was  organized,  was  unconstitu- 
tional, because  it  did  not  conform  to  the  provisions  of  the 
State  and  Federal  Constitutions,  which  provide  that  there 
shall  be  no  discrimination  on  account  of  race,  color  or  pre- 
vious condition  of  servitude.  The  motion  to  quash  was 
overruled,  and  thereupon  the  accused   filed  an  application 


MURRAY  V.  LOUISIANA. 


245 


for  the  removal  of  the  cause  to  the  Circuit  Court  of  the 
United  States.  The  allegations  of  the  petition  to  remove 
stated  the  action  of  the  court  in  overruling  the  challenge 
of  the  grand  jury,  and  that  there  was  a  local  prejudice 
against  the  accused,  as  a  colored  man  charged  with  having 
murdered  a  white  man,  which  would  prevent  a  fair  and  im- 
partial trial  in  any  State  court.  This  petition  was  filed  in  the 
State  court  on  February  19,  1S95.  On  February  2S,  1895, 
the  trial  was  commenced,  and  was  so  proceeded  in  that  on 
March  1,  1895,  the  jury  found  a  verdict  of  guilty. 

On  March  7,  1895,  a  motion  for  a  new  trial  and  a  motion  in 
arrest  of  judgment,  were  filed.  In  a  petition  accompanying 
these  motions  it  was  made  to  appear  that  on  February  26, 
1895,  the  accused  had  filed  in  the  Circuit  Court  of  the  United 
States  a  petition  for  a  writ  of  habeas  corpus,  and  for  an  injunc- 
tion forbidding  the  State  court  to  proceed.  No  action  in  the 
matter  appears  to  have  been  taken  by  the  United  States  Cir- 
cuit Court. 

Tbe  motion  for  a  new  ti'ial  and  the  motion  in  arrest  of  judg- 
ment were  refused,  and  on  March  7,  1895,  sentence  of  death 
was  pronounced  against  the  accused.  Certain  bills  of  excep- 
tions to  the  charge  and  rulings  of  the  court  were  signed,  and 
an  appeal  to  the  Supreme  Court  of  Louisiana  was  allowed. 
On  June  3, 1895,  the  Supreme  Court  affirmed  the  judgment  of 
the  trial  court,  and  by  a  writ  of  error  that  judgment  of  the 
Supreme  Court  of  Louisiana  was  brought  to  this  court. 

Mr.  Thomas  F.  Maker,  for  plaintiff  in  error. 

Mr.  M.  J.  Ounniny/iam,  Attornet/  General  of  the  State  of 
Louisiana,  and  3//*.  Alexander  Porter  Morse,  for  defendant  in 
error,  submitted  on  their  brief. 

Mr.  Justice  Shieas,  after  stating  the  case,  delivered  the 
opinion  of  the  court. 

Several  of  the  assignments  of  error  bring  into  question  the 
correctness  of  the  judgment  of  the  Supreme  Court  of  the  State 
of  Louisiana,  affirming  the  action  of  the  trial  court  in  proceed- 
ing with  the  trial,  in  disregard  of  a  petition  by  the  accused  to 
have  the  cause  removed  into  the  Circuit  Court  of  the  United 
States,  upon  the  allegation  that  the  petitioner  was  a  negro,  and 
that  persons  of  African  descent  were,  by  reason  of  their  race 


■■■■■■  "-,,-^.-vr.  i"*^ 


■umm 


r  '! 


246 


AMERICAN  CRIMINAL  REPORTS. 


and  color,  excluded  by  the  jury  commissioners  from  serving  as 
grand  and  petit  jurors. 

To  dispose  of  such  assignments  it  is  sufficient  to  cite  J^eal  v. 
Delaware^  103  U.  S,  370,  and  Gibson  v.  Mississijypi,  162  U.  S. 
665,  decided  at  the  present  term,  in  which,  after  careful  con- 
sideration, it  was  held  that  Congress  had  not,  by  section  611 
of  the  Revised  Statutes,  authorized  a  removal  of  the  prosecution 
from  the  State  court  upon  an  allegation  that  jury  commis- 
sioners or  other  subordinate  officers  had,  without  authority 
derived  from  the  Constitution  and  laws  of  the  State,  excluded 
colored  citizens  from  juries  because  of  their  race;  that  said 
section  did  not  embrace  a  case  in  which  a  right  is  denied  by 
judicial  action  during  a  trial,  or  in  the  sentence,  or  in  the 
mode  of  executing  the  sentence;  that  for  such  denials  arising 
from  judicial  action  after  a  trial  commenced,  the  remedy  lay 
in  the  revisory  power  of  the  higher  courts  of  the  State,  and 
ultimately  in  the  power  of  review  which  this  court  may  exer- 
cise over  their  judgments  whenever  rights,  privileges  or  im- 
munities claimed  under  the  Constitution  or  laws  of  the  United 
States  are  withheld  or  violated;  and  that  the  denial  or  inability 
to  enforce,  in  the  judicial  tribunals  of  the  States,  rights  secured 
by  any  law  providing  for  the  equal  civil  rights  of  citizens  of 
the  United  States,  to  which  section  641  refers,  and  on  account 
of  which  a  criminal  prosecution  may  be  removed  from  a  State 
court,  is  primarily,  if  not  exclusively,  a  denial  of  such  rights, 
or  an  inability  to  enforce  them,  resulting  from  the  Constitution 
or  laws  of  the  State,  rather  than  a  denial  first  made  manifest 
at  and  during  the  trial  of  the  case. 

The  petition  for  removal  complained  of  the  acts  of  the  jury 
commissioners,  in  illegally  confining  their  summons  to  white 
citizens  only,  and  in  excluding  from  jury  service  citizens  of 
the  race  and  color  of  the  petitioner,  but  did  not  aver  that  the 
jury  commissioners  so  acted  under  or  bj'  virtue  of  the  laws  or 
Constitution  of  the  State ;  nor  was  tliere  shown,  during  the 
course  of  trial,  that  there  was  any  statutory  or  Constitutional 
enactment  of  the  State  of  Louisiana  which  discriminated 
against  j)ersons  on  account  of  race,  color  or  previous  condition 
of  servitude,  or  which  denied  to  them  the  equal  protection  of 
the  laws. 

Other  assignments  ask  our  attention  to  errors  alleged  to 
have  been  committed  in  the  course  of  the  trial.    It  is  claimed 


MURRAY  V.  LOUISIANA. 


247 


that  the  rights  of  the  accused  were  disregarded  in  the  pro- 
ceedings under  his  challenge  to  the  grand  jury.  The  princi- 
pal matters  complained  of  seem  to  be  the  action  of  the  court 
in  indorsing  on  the  challenge  to  the  grand  jury  the  words, 
*'  filed  subject  to  argument  on  face  of  papers ; "  and  on  the 
motion  for  subpoena  duces  tecum,  directed  to  the  registrar  of 
voters,  the  words  "  filed  subject  to  orders,"  and  on  the  motion 
for  subpoena  duces  tecum,  addressed  to  the  jury  commission- 
ers the  words  "  filed  subject  to  orders ; "  and  it  is  claimed  that 
such  indorsements  were  irregular,  deprived  the  accused  of 
opportunity  to  sustain  the  allegations  contained  in  his  written 
challenge,  and  deprived  him  of  due  process  of  law. 

The  indorsements  or  orders  made  upon  the  various  papers 
appear  to  us  to  have  only  signified  that  the  court  withheld 
immediate  action  on  the  motions.  They  evidently  were  not 
treated  by  the  court  as  concluding  the  accused^  because  the 
record  shows  that  subsequently  the  hearing  of  the  challenge 
was  proceeded  in,  and  that  evidence  was  adduced  by  both  the 
State  and  the  accused. 

An  exception  was  taken  to  the  refusal  of  the  court  to  grant 
what  was  termed  a  subpoena  duces  tecum,  directed  to  Francis 
E.  Zacharie,  registrar  of  voters.  The  reason  given  by  the 
court  was  that  the  so-called  writ  of  subpoena  duces  tecum  did 
not  purport  to  be  such,  did  not  describe  or  refer  to  any  paper 
or  document  which  was  in  the  possession  of  the  registrar,  and 
which  the  defendant  ^    juired. 

The  court  was  of  opinion  that  either  the  defendant  should 
have  specified  the  books  or  documents  required,  or,  if  he 
wished  information  from  the  registrar,  he  should  have  sub- 
poenaed him  to  attend  and  testify.  We  perceive  no  error  in 
this  action. 

Exception  was  likewise  taken  to  the  refusal  of  the  court  to 
grant  a  writ  of  subpoena  duces  tecum  on  the  jury  commission- 
ers, not  commanding  them  to  produce  specified  books  or  pa- 
pers, but  that  they  should  furnish  the  names  and  residences 
of  the  3,500  citizens  whom  they  had  summoned  to  qualify  as 
jurors.  The  court  thought  that  the  writ  asked  for  was  not  a 
writ  of  subpoena  duces  tecum,  and  that  the  defendant,  if  he 
desired  information  from  the  commissioners,  should  have  sub- 
poenaed them  to  attend  as  witnesses.    Besides,  the  defendant 


mJi:.;.. 


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Il   ) 


'•:  i? 


IE 


248 


AMERICAN  CRIMINAL  REPORTS. 


had  the  advantage  of  their  testimony  by  consenting  to  the  use 
of  their  evidence  in  the  Heard  case. 

At  all  events,  no  injury  was  suffered  by  the  defendant  by 
the  refusal  of  the  court  to  grant  him  the  writs  ])rayed  for,  bo- 
cause  the  evidence  he  desired  to  get  did  not  tend  to  show  that 
the  rights  of  the  accused  were  denied  by  the  constitution  or 
laws  of  the  State,  and  therefore  did  not  authorize  the  removal 
of  the  prosecution  from  the  State  court. 

A  more  serious  question  is  presented  by  an  exception  to  the 
action  of  the  trial  court  in  ])ermitting  to  be  read  the  evidence 
of  one  King  Jones,  which  had  been  taken  in  the  presence  of 
the  accused  in  open  court  at  a  preliminary  hearing,  and  read 
to  and  signed  by  the  witness.  The  reason  given  by  the  district 
attorney  for  the  use  of  the  deposition,  was  that  after  due  dili- 
gence he  was  unable  to  procure  the  attendance  of  the  witness, 
who  was  not  within  the  jurisdiction  of  the  court. 

The  record,  however,  discloses  that  the  bill  of  exceptions  to 
the  allowance  of  this  evidence  was  not  presented  for  signature 
to  the  judge  until  March  14, 1895,  two  weeks  after  the  sentence 
was  rendered,  and  after  a  new  trial  had  been  refused  and  an 
appeal  allowed.  No  error  was  assigned  in  the  Supreme  Court 
of  Louisiana,  to  the  admission  of  this  evidence,  nor  is  it  made 
the  subject  of  assignment  in  this  court.  Neither  does  the  rec- 
ord disclose  the  nature  or  effect  of  the  testimony  so  admitted. 
In  the  absence  of  a  bill  of  exceptions,  disclosing  at  least  the 
substance  of  the  evidence,  and  of  an  assignment  of  error,  we 
are  permitted  to  suppose  that  the  evidence  was  trivial,  and 
that  it  did  no  injury  to  the  defendant.  We  certainly  have 
nothing  in  this  record  which  would  authorize  us  to  convict  the 
Supreme  Court  of  Louisiana  of  any  error  in  that  behalf. 

There  was  a  motion  to  quash  the  indictment,  on  the  ground 
that  act  No.  170,  of  1894,  under  the  provisions  of  which  the 
grand  jury  was  drawn,  was  unconstitutional  in  that  it  was  al- 
leged to  be  a  local  or  special  law,  and  not  enacted  according  to 
a  constitutional  requirement  of  previous  public  notice.  This 
motion  was  refused  by  the  trial  court,  and  its  action  Avas  ap- 
proved by  the  Supreme  Court  of  the  State.  Error  is  assigned 
in  this  court,  but  no  Federal  question  is  thereby  presented. 

Nor  can  we  perceive  any  merit  in  the  assignment  which 
avers  that  this  act,  No.  170,  is  in  conflict  with  the  Four- 
teenth Amendment  to  the  Constitution  of  the  United  States, 


MURRAY  V.  LOUISIANA. 


240 


because  such  law  is  alleged  to  confer  on  the  jury  commission- 
ers of  the  parish  of  New  Orleans  jiulicial  powers  in  the  selec- 
tion of  citizens  for  jury  services.  It  is  not  pretended  that  the 
,accused  was  subjected  to  any  other  or  different  treatment,  in 
respect  to  that  feature  of  the  statute,  than  that  which  prevails 
in  other  cases,  or  on  the  trial  of  white  citizens. 

A  careful  inspection  of  this  record  has  failed  to  disclose  any 
particular  in  which  the  accused  was  deprived  of  any  right  or 
immunity  secured  to  liim  under  the  laws  or  Constitution  of  the 
United  States,  and  the  judgment  of  the  Supreme  Court  of 
Louisiana  is  accordingly  affirmed. 

Note. — In  all  criminal  prosecutions  the  accused  shall  enjoy  the  right  * 
*  *  "to  be  confronted  u'ith  tlie  witnesses  against  him." — What  was  the 
aim  and  object  of  tliis  declaration  found  in  the  sixth  amendment  to  the 
Federal  Constitution,  a  counterpart  of  which  is  embodied  in  the  Bill  of 
Rights,  m  the  Constitution  of  every  State  in  the  Union  ?  Does  it  mean  that 
if  the  accused  be  confronted  with  the  witnesses  against  him  at  a  prelimi- 
nary hearing,  or  coroner's  inquest,  that  the  statements  given  in  evidence  on 
such  a  liearing  or  investigation  may  be  given  in  evidence  at  the  trial 
aliould  it  appear  that  the  witnesses  were  dead  or  had  gone  beyond  tlie 
seas?  Not  at  all.  Such  a  holding  would  virtually  eliminate  all  of  the 
declaration  from  the  Bill  of  Rights. 

Under  such  conditions  how  could  the  traverse  jury  discern  the  demeanor 
of  the  witness  when  on  the  stand  ?  The  paper  testimony  would  not  re- 
produce before  the  jury,  the  facial  expressions,  the  halting  and  changing 
of  voice,  the  forced  self-assertion  and  abandon,  which  so  markedly  re- 
veal tlie  character  of  the  witness  when  testifying,  and  constitute  almost 
unerring  indications  of  tlie  truth  or  falsehood  of  his  testimony.  History, 
reason  and  the  philosophy  of  the  law,verify  the  force  and  correctness  of  the 
conclusion  that  the  aim  and  object  of  this  declaration  is  to  secure  to  the 
accused  the  right  to  be  brought  face  to  face  with  the  witness  testifying 
against  him,  before  that  jury  which  is  the  arbiter  of  his  right  to  life  or 
liberty. 

Before  reviewing  some  of  the  historic  incidents  which  the  framers  of  the 
Constitution  most  likely  had  in  mind  when  they  penned  this  declaration  of 
right,  let  me  here  solemnly  admonish  judges,  especially  of  courts  of  review, 
to  cling  closely,  with  jealous  care,  to  the  landmarks  of  the  Ckmstitution,  and 
to  hold  it  their  bounden  duty  to  "lee  to  it  that  no  person,  however  humble, 
shall  be  denied  any  right  or  privilege  guaranteed  him  by  that  instrument. 

My  own  experience  and  observation,  at  the  bar  and  on  the  bench,  in  the 
trial  of  criminal  causes,  emphasize  the  truth  of  the  assertion  that  notwith- 
standing the  intellectual  and  moral  advance  of  to-day  over  all  the  ages 
which  have  gone  before,  the  danger  of  innocent  persons  being  convicted  to 
appease  popular  sentiment  is  just  as  great  now  as  it  was  when  every  otlicial 
held  his  commission  from  the  king. 

How  many  times  within  the  memory  of  us  all  have  innocent  men  been 
indicted  by  a  star-chamber  grand  jury,  tried  and  convicted  at  the  bar  of 


i'l' 


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1  >  '4. ''.-: 


250 


AMERICAN  CRIMINAL  REPORTS. 


public  opinion  through  tho  powerful  influence  of  the  press,  and  who  would 
have  been  sent  to  the  penitentiary,  perchance  to  the  gallowa,  but  for  tlu« 
timely  interposition  of  frienils  or  neighlwra,  tlirougli  whoso  aid  the  vi(!tini8 
were  enabled  to  employ  counsel  to  prepare  their  defense  and  establisli  tiieir 
innocence. 

It  is  safe  to  assume  that  tho  fathers  of  the  Constitution  could  not  have  been 
unmindful  of  the  teachings  of  history,  touching  the  star  chamber  and  the 
inquisition,  those  tribunals  of  infamy  and  ten'or.  liefore  whom  men  w»>re 
condemned  to  death  upon  depositions  and  statements  in  writing  from  wit- 
nesses unknown  to  the  accused,  or  by  spurious  confessions  and  admissions 
wrung  from  the  prisoner  by  torture  and  terror. 

The  inestimable  value  of  the  right  to  the  accused  of  being  confronted 
with  one  whose  testimony  is  against  him  is  most  strongly  illustrated  in  tho 
sacred  writings,  as  well  as  in  the  history  of  criminal  jurisprudence.  We 
are  told  tiiat  when  Adam  broke  the  Divine  command  he  hid  himself  from 
the  face  of  the  Lord.  After  Peter  denied  the  Christ,  when  the  LoihI  turned 
and  loiiked  upon  him  he  remembered  the  word  of  the  Ixird  and  Peter  went 
out  and  wept  bitterly  (Luke,  Chap.  23,  par.  61  and  Q'i),  Again  in  A('ts  of 
the  Ajwstles,  Chap.  35,  when  Paul  was  a  prisoner  at  Cesarea,  King  Agrippa 
visited  Festus,  the  governor,  and  when  the  king  had  been  thtre  many  days 
Festus  declared  Paul's  case  unto  the  king.  "  Tliere  is  a  certain  man  left  in 
Iwnds  by  Felix,  about  whom,  when  I  was  at  Jerusalem,  the  chief  priests 
and  the  elders  of  the  Jews  informed  me,  desiring  to  have  judgment  against 
him.  To  whom  I  answered,  'It  is  not  the  manner  of  the  Romans  to 
deliver  any  man  to  die,  before  that  he  which  is  accused  have  tho  accusers 
face  to  face,  and  have  license  to  answer  for  himself  concerning  the  crime 
laid  against  him.' " 

When  aiHdavits  were  read  to  Mary,  Queen  of  Scots,  in  prison,  imputing 
to  her  great  crimes,  the  unfortunate  queen  answered:  "  Who  are  the  wit- 
nesses (for  they  were  not  even  named  to  her);  bring  tliem  before  me  and 
they  will  forswear  their  falsehoods  when  taey  meet  mo  face  to  face." 

In  1589  Philip  Howard,  Earl  of  Arundel,  was  tried  for  high  treason, 
Gerard  and  Shelly  being  witnesses  against  him.  These  witnesses  accused 
him  of  having  offered  up  his  prayers  for  the  success  of  the  Spanish  exjiedi- 
tiou  against  England;  Arundel  declared  that  his  prayers  were  only  for  tlie 
preservation  of  himself  and  fellow  Catholics  from  the  general  miussaore  to 
which  report  had  said  they  were  doomed  in  the  event  of  the  Spaniards 
effecting  a  landing;  then  fixing  his  eyes  upon  Gerard  and  adjuring  him  to 
"  speak  nothing  but  the  truth,  as  he  must  one  day  stand  before  the  tri- 
bunal of  the  living  God  to  answer  for  what  he  should  then  say,"  he  so 
daunted  and  disconcerted  the  witness  that  he  lost  his  utterance  and  was 
unable  to  repeat  his  first  assertion. 

Sir  Walter  Raleigh  was  convicted  of  high  treason,  chiefly  upon  the  written 
statement  of  one  Cobham,  which  he  denied  in  a  letter  to  Raleigh,  but  after- 
ward re-affirmed  in  part  in  a  letter  to  tlie  lords,  the  evening  Ijefore  the 
trial.  Upon  the  trial.  Sir  Walter  Raleigh  demanded  that  Cobham  should 
be  confronted  by  him;  he  appealed  to  the  statute  law.  and  to  the  law  of 
God,  which  required  two  witnesses;  he  even  offered  to  abandon  his  defense 
if  his  accuser  would  dare  to  assert,  in  his  presence,  that  he  had  ever  .advised 
any  dealing  whatever  with  the  Spanish  monarch.    He  demanded  again  that 


!    ? 


ROSEN  V.  UNITED  STATES. 


251 


h\»  accuser  stand  forth,  and  if  Cobham  dared  to  re-nfflrm  a  single  charge  be- 
fore his  face,  he  would  submit  in  silence  to  his  fate. 

It  is  unnecessary  to  multiply  cases,  for  the  wliole  record  of  each  State 
Trial  is  but  the  recital  of  judicial  murders,  planned  by  conscienceless  and 
envious  otHcials,  and  periHJtrated  through  that  inhuman  system  of  jurispru- 
dence which  permitted  affldavittt,  letters  and  depositions  to  be  read  in  evi- 
dence against  the  accused. 

Judges,  let  nie  again  admonish  you  to  make  tha  Constitution  the  touch- 
stone of  your  otticial  action. 


BosEN  V.  United  States. 


(161 U.  S.  29.) 

Constitutional  Law:  Indictment— Sufficiency  of— Right  of  accused  to  be 
informed  of  accusation  against  hini— Obscene  publications. 

1.  Tlie  constitutional  right  of  a  defendant  to  be  informed  of  the  nature 

and  cause  of  the  accusation  against  him,  entitles  him  to  insist,  at  the 
outset,  by  demurrer  or  by  motion  to  quash,  and,  after  verdict,  by  mo- 
tion in  arrest  of  judgment,  that  the  indictment  shall  apprise  him  of  the 
crime  charged  with  such  reiisonable  certainty  that  he  can  make  his 
defense  and  protect  himself  after  judgment  against  another  prosecu- 
tion for  the  same  offense.  It  is  the  privilege  of  the  accused  in  such 
case,  to  apply  to  the  court  before  the  trial  is  entered  upon  for  a  bill  of 
particulare,  showing  what  parts  of  the  paper  would  be  relied  on  by  the 
prosecution  as  being  obscene,  lewd  and  lascivious,  which  motion  will 
bo  granted  or  refused,  as  the  court,  in  the  exercise  of  a  sound  legal  dis- 
cretion, may  find  necessary  to  the  ends  of  justice. 

2.  Eveiy  one  who  uses  the  mails  of  the  United  States  for  canying  papers 

or  publications  must  take  notice  of  what,  in  this  enlightened  age,  ia 
n  .eant  by  decency,  purity  and  chastity  in  social  life,  and  what  must  b* 
dreuiud  obscene,  lewd  and  lascivious. 
8,  Wien  the  evidence  before  the  jury,  if  clear  and  uncontradicted,  upon 
any  issue  made  by  the  parties,  presents  a  question  of  law,  the  court  can, 
without  usurping  the  functions  of  the  jury,  instruct  them  as  to  the 
principles  applicable  to  the  case  by  such  evidence. 


Error  to  the  Circuit  Court  of  the  United  States  for 
Southern  District  of  New  York. 
The  case  is  stated  in  the  opinion. 


the 


Mr.  William  iT.  Cohen,  for  plaintiff  in  error. 

Mr.  Assistant  Attorney  General    Whitney,  for  defendant  in 


error. 


Mr.  Justice  IIari.an  delivered  the  opinion  of  the  court. 
The  plaintiff  in  error  was  indicted  under  section  3893  of  the 


r'i 


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252 


AMERICAN  CRIMINAL  REPORTS. 


,        ii 


Hevisod  Statutes,  providing  that  "every  obscene,  lo\v<l,  or 
lascivious  book,  pamphlet,  picture,  paper,  writing,  print,  or 
other  publication  of  an  indecent  character,  and  every  article 
or  thing  intended  or  adapted  for  any  indecent  or  immoral  use, 
and  every  written  or  printed  card,  circular,  or  book,  pamphlet, 
advertisement,  or  notice  of  any  kind  giving  information,  di- 
rectly or  indirectly,  where,  or  how,  or  of  whom,  or  by  what 
means,  any  of  the  hereinbefore  mentioned  matters,  articles,  or 
things  may  be  obtained  or  made,  are  hereby  declared  to  bo 
non-mailable  matter,  and  shall  not  be  conveyed  in  the  mails, 
nor  delivered  from  any  postoffice,  nor  by  any  letter  carrier; 
and  any  person  who  shall  knowingly  deposit,  or  cause  to 
be  deposited,  for  mailing  or  delivery,  anything  declared  by 
this  section  to  be  non-mailable  matter,  and  any  person  who 
shall  knowingly  take  the  same,  or  cause  the  same  to  be  taken, 
from  the  mails,  for  the  purpose  of  circulating,  or  disposing  of, 
or  of  aiding  in  the  circulation  or  disposition  of  the  same,  shall 
be  deemed  guilty  of  a  misdemeanor,  and  shall  for  each  and 
every  offense  bo  fined  not  less  than  one  hundred  dollars  nor 
more  than  live  thousand  dollars,  or  imprisoned  at  hard  labor 
not  less  than  one  year  nor  more  than  ton  years,  or  both,  at  the 
discretion  of  the  court." 

The  defendant  pleaded  not  guilty,  and  the  trial  was  entered 
upon  without  objection  in  any  form  to  the  indictment  as  not 
sufficiently  informing  the  defendant  of  the  nature  of  the 
charge  against  him. 

A  verdict  of  guilty  having  been  returned,  the  accused 
moved  for  a  new  trial  upon  the  ground,  among  others,  that 
the  indictment  was  fatally  defective  in  matters  of  substance. 
That  motion  was  denied. 

The  defendant  thereupon  moved  in  arrest  of  judgment,  upon 
the  ground  that  the  indictment  did  not  charge  that  he  knew, 
af  the  time,  what  were  the  contents  of  the  paper  deposited  in 
the  mail  and  alleged  to  be  lewd,  obscene,  and  lascivious.  This 
motion  was  also  denied,  and  the  accused  was  sentenced  to 
imprisonment  at  hard  labor  during  a  period  of  thirteen 
months,  and  to  pay  a  fine  of  one  dollar. 

The  paper,  "  Broadway,"  referred  to  in  the  indictment,  was 
produced  in  evidence,  first,  by  the  United  States,  and  after- 
ward by  the  accused.  The  copy  read  in  evidence  b}'  the  gov- 
ernment was  the  one  which,  it  was  admitted  at  the  trial,  the 


UOSEN  V.  UNITED  STATES. 


S68 


defendant  hail  caused  to  bo  deposited  in  the  mail.  The 
picture  of  females  appearing  in  that  copy  were,  by  direction 
of  tlio  defendant,  partially  covered  with  lamp  black  that 
could  bo  easily  erased  with  a  piece  of  bread.  The  object  in 
sending  them  out  in  that  condition  was,  of  course,  to  excite  a 
curiosity  to  know  what  was  thus  concealed.  The  accused 
read  in  evidence  a  copy  that  he  characterized  as  a  "  clean" 
one,  and  in  which  tho  pictures  of  females,  in  different  atti- 
tudes of  indecency,  wore  not  obscured  by  lamp  black. 

The  defendant  having  indicated  his  purpose  to  bring  the 
case  here  for  review,  the  court  below  ordered  these  papers  to 
be  sent  to  the  clerk  of  this  court  with  tho  transcript  of  the 
proceedings  below. 

The  first  contention  of  tho  plaintiff  in  error  is,  that  the 
indictment  was  fatally  defective  in  not  alleging  that  the 
paper  in  question  was  deposited  in  the  mail  with  knowledge 
on  his  part  that  it  was  obscene,  lewd,  and  lascivious. 

The  indictment  cliarged  that  tho  accused,  on  the  24th  day  of 
April,  IS93,  within  tho  Southern  District  of  New  York,  "did 
unlawfully,  wilfully,  and  knowingly  deposit  and  cause  to  be 
deposited  in  the  postofflco  of  the  city  of  New  York,  for  mail- 
ing and  delivery  by  the  postoffice  establishment  of  the  United 
States,  a  certain  obscene,  lewd,  and  lascivious  paper;  which 
said  paper  then  and  there,  on  the  first  page  thereof,  was  en- 
titled 'Tenderloin  Number,  Broadway,'  and  on  the  same  page 
were  printed  tho  words  and  figures  following  «  *  *  that 
is  to  say :  '  Volume  II,  number  27,  trade-mark,  1892;  by  Lew 
Rosen;  New  York,  Saturday,  April  15, 1893;  ten  cents  a  copy, 
$4  a  year,  in  advance;  and  thereupon,  on  the  same  page,  is  a 
picture  of  a  cab,  horse,  driver,  and  the  figure  of  a  female,  to- 
gether (underneath  the  said  picture)  with  the  word  *  tender- 
loineuse;'  and  tho  said  paper  consists  of  twelve  pages,  minute 
descriptions  of  which,  with  tho  pictures  therein  and  thereon, 
would  be  offensive  to  the  court  and  improper  to  spread  upon 
tlie  records  of  the  court,  bacauso  of  their  obscene,  lewd,  and 
indecent  matters;  and  the  said  paper,  on  the  said  twenty-fourth 
day  of  April,  in  tho  year  one  thousand  eight  hundred  and 
ninety-three,  was  inclosed  in  a  wrapper  and  addressed  as  fol- 
lows —  that  is  to  say,  '  Mr.  Geo.  Edwards,  P.  O.  box  510, 
Summit,  N.  J.'  —  against  the  peace  of  the  United  States 


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251 


AMERICAN  CRIMINAL  REPORTS. 


and  their  dignity,  and  contrary  to  the  statute  of  the  United 
States  in  such  case  made  and  provided." 

Undoubtedly  the  mere  depositing  in  the  mail  of  a  writing, 
paper,  or  other  publication  of  an  obscene,  lewd,  or  lascivious 
character,  is  not  an  offense  under  the  statute  if  the  person 
making  the  deposit  was,  at  the  time  and  in  good  faith,  with- 
out knowledge,  information,  or  notice  of  its  contents.  The 
indictment  would  have  been  in  better  form  if  it  had  more  dis- 
tinctly charged  that  the  accused  was  aware  of  its  character. 
But  this  detect  should  be  regarded,  after  verdict  and  under 
the  circumstances  attending  the  trial,  as  one  of  form  under 
section  1025  of  the  Eevised  Statutes  providing  that  the  pro- 
ceedings on  an  indictment  found  by  a  grand  jury  in  any  Dis- 
trict, Circuit,  or  other  court  of  the  United  States,  shall  not  be 
affected  "  by  reason  of  any  defect  or  imperfection  in  matter  of 
form  only,  which  shall  not  tend  to  the  prejudice  of  the  defend- 
ant." UthUed  States  v.  Chase,  27  Fed.  Kep.  807;  United  States 
V.  Clark,  37  Ted.  Rep.  106. 

Tlie  indictment  on  its  face  implies  that  the  defendant  owned 
or  managed  the  paper,  Broadway.  He  admitted  at  the  trial 
that  he  owned  and  controlled  it.  lie  did  not  pretend  that  he 
was  ignorant  at  the  time,  of  tlie  cont^snts  of  the  particu'-ir 
number  that  he  caused  to  be  put  in  the  postoffice  at  New 
York.  The  general  charge  that  he  "  unlawfull}',  wilfully,  and 
knowingly  deposited  and  caused  to  be  deposited  in  the  post- 
office  *  *  *  a  certain  obscene,  lewd,  .and  lascivious  paper" 
— describing  it  by  its  name,  volume,  number,  date  of  trade- 
mark, date  of  issue,  and  as  having  cm  it  the  name  of  Lew 
Rosen,  proprietor,  the  same  name  borne  by  the  defendant,  may 
not  unreasonably  be  construed  as  meaning  that  the  defendant 
was,  and  must  have  been,  aware  of  the  nature  of  its  contents 
at  the  time  he  caused  it  to  be  put  into  the  postoltice  for  trans- 
mission and  delivery.  Of  course  he  did  not  understand  the 
government  as  claiming  that  the  mere  depositing  in  the  post- 
office  of  an  obscene,  lewd,  and  lascivious  paper  was  an  offense 
under  the  statute,  if  the  person  so  depositing  it  had  neither 
knowledge  nor  notice,  at  the  time,  of  its  character  or  contents. 
He  must  have  understood  from  the  words  of  the  indictment 
that  the  government  imputed  to  him  knowledge  or  notice  of 
the  contents  of  the  paper  so  deposited. 

In  their  ordinary  acceptation,  the  words  "  unlawfully,  wil- 


ROSEN  V.  UNITED  STATES. 


255 


fully,  and  knowingly,"  when  applied  to  an  act  or  thing  done, 
import  knowledge  of  the  act  or  thing  so  done,  as  well  as  an  evil 
intent  or  bad  purpose  in  doing  such  thing;  and  when  used  in 
an  indictment  in  connection  with  the  charge  of  having  depos- 
ited in  the  mails  an  obscene,  lewd,  and  lascivious  paper,  con- 
trary to  the  statute  in  such  case  made  and  provided,  could  not 
have  been  construed  as  applying  to  the  mere  depositing  in  the 
mail  of  a  paper  the  contents  of  which  at  the  time  were  wholly 
unknown  to  the  person  depositing  it.  The  case  is  therefore 
not  one  of  the  total  omission  from  the  indictment  of  an  essen- 
tial averment,  but,  at  most,  one  of  the  inaccurate  or  imperfect 
statement  of  a  fact;  and  such  statement,  after  verdict,  may  be 
taken  in  the  broadest  sense  authorized  by  the  words  used,  even 
if  it  be  adverse  to  the  accused. 

The  defendant  also  contends  that  the  indictment  was  fatally 
defective,  in  that  it  did  not  set  out  with  reasonable  parti- 
cularity those  parts  of  the  paper  relied  on  to  support  the 
charge  in  the  indictment.  lie  insists  that  the  omission  from 
the  indictment  of  a  description  of  the  pictures  of  female  fig- 
ures found  in  the  paper  was  in  violation  of  the  constitutional 
guaranty  that  the  defendant  in  a  criminal  case  shall  be  in- 
formed of  the  nature  and  cause  of  the  accusation  against  him. 
Sixth  amendment. 

A  defendant  is  informed  of  the  nature  and  cause  of  the 
accusation  against  him,  if  the  indictment  contains  such  descrip- 
tion of  the  offense  charged  as  will  enable  him  to  make  his 
dofonse,  and  to  plead  the  judgment  in  bar  of  any  further  pros- 
ecution for  the  same  crime.  Does  the  indictment  in  this  case 
meet  these  requirements  ?  It  described  the  paper  alleged  to 
be  obscene,  lewd,  and  lascivious  with  such  minuteness  as  to 
leave  no  possible  doubt  as  to  its  identity.  If  the  defendant 
did  not  have  in  his  possession  or  could  not  procure  a  duplicate 
of  such  paper,  he  could  have  applied  to  the  court  for  an  order 
that  he  be  furnished  with  a  bill  of  particulars  to  the  end  that 
he  might  pro])erly  defend  himself  at  the  trial.  United  States 
V.  Bennett,  16  Blatchford,  338,  351;  Jiex  v.  Hodgson,  3  Car.  & 
P.  422;  Wharton's  Crim.  PI.  &  Pr.,  §  702.  He  made  no  such 
application  but  went  to  trial  without  suggesting  that  he  was 
not  sufficiently  informed  by  the  indictment  of  the  nature  and 
cause  of  the  accusation  against  him.  When  the  paper  in  ques- 
tion was  produced  in  evidence  he  made  no  objection  to  it  as 


;!t 


•1 1  ■; 


256 


AMERICAN  CRIMINAL  REPORTS. 


not  being  suflBciently  described  in  the  indictment,  but  at  the 
conclusion  of  the  evidence  on  the  part  of  the  prosecution 
moved  to  dismiss  on  the  ground  that  the  paper  was  not  ob- 
scene. This  motion  having  been  overruled  he  testified  in  liis 
own  belialf,  offering  in  evidence  a  duplicate  of  the  same  paper, 
admitting  that  lamjvblack — capable  of  being  easily  removed 
so  as  to  bring  each  offensive  picture  in  full  view  of  any  per- 
son receiving  or  inspecting  tho  paper—had  by  his  direction 
been  put  on  the  entire  edition  of  April  1.5,  1893.  He  now  in- 
sists that  the  indictment  was  fatally  defective,  becaise  it  did 
not  disclose  in  detail  the  contents  of  the  twelve  pages  that 
were  charged  to  constitute  an  obscene,  lewd  and  lascivious 
paper.  If  it  be  said  that  he  did  not  know  what  part  of  the 
twelve  pages  were  considered  by  the  grand  jury  as  obscene, 
lewd,  and  lascivious,  the  answer  is  that  he  was  not  entitled  to 
know  what  passed  in  the  conferences  of  grand  jurors.  He 
was  not  entitled  to  show,  as  matter  of  defense,  that  the  grand 
jury  proceeded  on  insufficient  grounds.  He  had  to  meet  only 
the  case  made  by  the  indictment  and  by  the  evidence  adduced 
by  the  government.  And  if  he  wished  to  be  informed,  before 
entering  upon  the  trial,  what  particular  parts  of  the  paper 
would  be  relied  on  as  bringing  the  case  within  the  statute,  he 
could,  as  already  suggested,  have  applied  for  a  bill  of  particu- 
lars, which  the  court,  in  the  exercise  of  a  sound  legal  discre- 
tion, might  have  granted  or  refused  as  the  ends  of  justice 
required. 

The  principal  authority  relied  on  in  support  of  the  defend- 
ant's contention  is  the  case  in  England  of  an  indictment  for 
publishing  an  obscene  libel,  namely,  "a certain  indecent, lewd, 
filthy, and  obscene  book  called  'Fruits of  Philosophy,'  thereby 


contaminating, 


vitiatmg 


and  corrupting    the  morals,"  etc. 


The  jury  found  that  the  book  was  obscene,  and  a  motion  in 
arrest  of  judgment  was  made  by  accused.  The  motion  was 
denied;  Cockburn,  C.  J.,  Mellor,  J.,  concurring,  held:  "If 
the  omission  is  in  the  indictment — if  that  be  the  objection, 
and  it  be  a  valid  one — it  is  an  objection  that  ought  to  have 
been  taken  by  demurrer,  and,  therefore,  I  can  not  help  think- 
ing that,  upon  the  balance  of  convenience,  wo  shall  act  more 
wisely  in  saying  that  the  judgment  pronounced  on  this  indict- 
ment ought  not  to  be  set  aside  by  making  the  motion  absolute 
to  arrest  the  judgment;  but,  if  there  be  any  valid  foundation 


ROSEN  V.  UNITED  STATES. 


257 


for  the  contention  the  defendants  have  raised  upon  the  indict- 
ment, it  should  be  taken  by  demurrer."  Queen  v.  Bradlaugh,  2 
Q.  B.  1).  5(59,  573.  The  judgment  was  reversed  in  the  Court 
of  A]ii)eal,  which  held  that  in  an  indictment  for  publishing 
an  obscene  book,  described  only  b}'^  its  title,  the  words  alleged 
to  be  obscene  must  be  set  out,  and  their  omission  ■would  not 
be  cured  by  a  verdict  of  guilty.  In  his  opinion  in  that  case, 
Lord  'i  MVe  Brett  considered  what  kind  of  omissions  would 
be cuiiil  i)y  verdict,  and  declared,  as  the  result  of  the  author- 
ities, that  "  in  every  ':in''  of  crime  which  consists  in  words,  if 
the  words  complained  of  are  not  set  out  in  the  indictment  or 
Miformation,  the  objection  is  fatal  in  arrest  of  judgment." 
But  he  also  said :  "  I  would  strike  out  of  the  category  of 
the  cases  which  we  are  considering  all  cases  with  regard  to  ob- 
scene prints  and  obscene  pictures.  The  publication  of  obscene 
prints  and  obscene  pictures  may  be  in  one  sense  libellous,  but 
they  are  not  words,  and  therefore  they  do  not  seem  to  me  to 
fall  within  the  rules  as  to  criminal  pleadings,  which  we  are 
considering  here  to-day."  Bradlaugh  v.  Queen,  3  Q.  B.  D. 
607,  634-. 

Looking  at  the  cases  in  the  American  courts,  we  find  that 
iti  Commonwealth  v.  Sharj^less,  2  Seargeant  &  Rawle,  91,  103, 
(1815),  whi'jh  was  an  indictment  for  exhibiting  an  obscene  pic- 
ture, it  was  objected,  after  verdict  and  on  motion  in  arrest  of 
judgment,  that  the  picture  was  not  sufficiently  described. 
Chief  Justice  Tilghman  said:  "We  do  not  know  that  the 
picture  had  anv  name,  and,  therefore,  it  might  be  impossible 
to  designate  it  by  name.  AVhat,  then,  is  expected  ?  Must  the 
indictment  describe  minutely  the  attitude  and  posture  of  the 
figures  ?  I  am  for  paying  soine  respect  to  the  chastity  of  our 
records;  these  are  circumstances  Avhich  may  be  well  omitted. 
Whether  the  picture  was  really  indecent,  the  jury  might 
judge  from  the  evidence,  or  if  necessary,  from  inspection;  the 
witnesses  could  identify  it.  I  am  of  opinion,  that  the  descrip- 
tion is  sufficient." 

The  question  was  considered  in  Massachusetts,  in  1821,  in 
Commonwealth  v.  Holmes,  17  Mass.  336,  337.  That  was  an 
indictment  for  publishing  a  lewd  and  obscene  print,  con- 
tained in  a  certain  book  entitled  "  Memoirs  of  a  Woman 
of  Pleasure,"  and  for  publishing  the  same  book.  Two  of 
tlie  counts  alleged  that  the  printed  book  wis  so  lewd,  wicked 
17 


?  i 


IM 


v^   •  Si 


■':    S 


i   '■; 


258 


AMERICAN  CRIMINAL  REPORTS. 


and  obscene  "  that  the  same  would  be  offensive  to  the  court 
here,  and  improper  to  be  phxced  upon  the  records  thereof." 
Chief  Justice  Parker,  speaking  for  the  court,  held  these  counts 
to  be  good,  saying :  "  It  can  never  be  required  that  an  ob- 
scene book  and  picture  should  be  displayed  upon  the  records 
of  the  court;  which  must  be  done,  if  the  description  in  these 
counts  is  insutficient.  This  would  be  to  rt'][uire  that  the  pub- 
lic should  give  permanency  and  notoriety  to  indecency,  in 
order  to  punish  it."  Subsequently,  in  Commonwealth  v.  Tar- 
box,  1  Cush.  66,  72,  which  was  an  indictment  under  a  State 
enactment  for  printing,  publishing,  and  distributing  an  obscene 
paper,  the  court  said  :  "  In  indictments  for  offences  of  this 
description,  it  is  not  always  necessary  that  the  contents  of  the 
publication  should  be  inserted;  but  whenever  it  is  necessary 
to  do  so,  or  whenever  the  indictment  undertakes  to  state  the 
contents,  whether  necessary  or  not,  the  same  rule  prevails  as 
in  the  case  of  libel,  that  is  to  say,  the  alleged  obscene  publica- 
tion must  be  set  out  in  the  very  words  of  which  it  is  composed, 
and  the  indictment  must  undertake  or  profess  to  do  so,  by  the 
use  of  appropriate  language.  Tiie  excepted  cases  occur  when- 
ever a  publication  of  this  character  is  so  obscene  as  to  render 
it  improper  that  it  should  appear  on  the  record;  and  then 
the  statement  of  the  contents  may  be  omitted  altogether,  and 
a  description  thereof  substituted;  but,  in  this  case,  a  reason  for 
the  omission  must  appear  in  the  indictment,  by  proper  aver- 
ments. The  case  of  Commonwealth  v.  Holmes,  17  Mass.  330, 
furnishes  both  an  authority  and  a  precedent  for  this  form  of 
pleading."  In  Commonwealth  v.  McCance,  164  Mass.  162,  an 
indictment  charging  the  defendant  with  selling  a  certain  book 
containing,  among  other  things,  obscene  language,  was  held 
to  be  insufficient.  The  court  distinguished  the  case  before  it 
from  previous  cases,  and  said  that  v/hile  the  principle  an- 
nouT'ced  in  Commonwealth  v.  Holmes  must  be  regarded  as  an 
exception  to  the  general  rule  relating  to  libellous  publications, 
the  weight  of  authority  in  this  country  was  in  favor  of  that 
decision. 

So  in  People  v.  Girardin,  1  Michigan,  90,  91,  which  was  an 
indictment  for  printing  and  publishing  a  certain  paper  de- 
scribed by  its  title,  and  characterized  as  wicked,  obscene,  etc., 
the  court  said :  "  There  is  another  rule  as  ancient  as  that  con- 
tended for  by  the  counsel  for  the  prisoner,  which  forbids  the 


6'  I  K 


ROSEN  V.  UNITED  STATES. 


259 


introduction  in  an  indictment  of  obscene  pictures  and  books. 
Courts  will  never  allow  tlieir  records  to  be  ]>oIluted  by  bawdy 
and  obscene  matters.  To  do  this  would  be  to  require  a  court 
of  justice  to  perpetuate  and  give  notoriety  to  an  indecent  pub- 
lication, before  its  author  could  be  visited  for  the  great  wrong 
he  may  have  done  to  the  public  or  to  individuals.  And  there 
is  no  hardship  in  this  rule.  To  convict  the  defendant,  he  must 
be  shown  to  have  published  the  libel;  if  he  is  the  publisher  he 
must  be  presumed  to  have  been  advised  of  the  contents  of  the 
libel,  and  fully  prepared  to  justify  it.  The  indictment  in  this 
cause  corresponds  with  the  precedents  to  be  found  in  books  of 
the  highest  merit." 

In  State  v.  Brown,  27  Vermont,  619,  in  which  the  indictment 
stated  that  the  grand  jurors  omitted  from  the  indictment  the 
lewd  and  obscene  paper  alleged  to  have  been  sold,  because  it 
would  be  offensive  to  the  court  and  improper  to  be  placed  on 
the  records  of  the  court,  Chief  Justice  Redfieid  said :  "  Ordi- 
narily the  indictment,  in  a  case  like  the  present,  should  ret 
forth  the  book  or  publication  in  haec  verba,  the  Rome  as  in  in- 
dictments for  libel  or  forgery.  This  seems  to  be  an  acknowl- 
edged princi])le  in  the  books.  But  even  in  indictments  for 
forsrerv,  it  mav  be  excused,  as  if  the  forged  instrument  is  in 
the  possession  of  the  opposite  party.  So,  also,  in  a  case  lik3 
the  present,  if  the  publication  be  of  so  gross  a  character  that 
spreading  it  upon  the  record  will  bean  offense  against  decency 
it  may  be  excused,  as  all  the  English  precedents  show.  Some 
of  the  precedents  are  much  like  the  present,  describing  the 
obscene  character  of  the  publication  in  general  terms.  But 
more  generally  the  nature  of  the  publication  is  more  spe- 
cifically described.  But  in  both  cases  the  principle  of  the 
case  is  the  same.  If  the  paper  is  of  a  character  to  offend 
decency  and  outrage  modesty,  it  need  not  be  so  spread 
upon  the  record  as  to  produce  that  effect.  And  if  it  is 
alleged,  in  such  case,  to  be  a  publication  within  the  gen- 
eral terms  in  which  the  offense  is  defined  by  the  statute, 
it  is  sufficient,  which  seems  to  be  done  in  the  present  case. 
The  degree  of  particularity  with  which  the  paper  could  be  de- 
scribed without  exposing  its  grossness,  would  depend  some- 
thing upon  the  nature  of  that  feature,  whether  it  consisted  in 
the  words  used  or  the  general  description  given.    In  the 


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260 


AMERICAN  CRIMINAL  REPORTS. 


former  case  it  could  not  be  more  particularly  described  than  it 
here  is  without  offending  decency." 

In  McN'air  v.  The  People,  89  Illinois,  441,  443,  the  question 
was  whether  the  indictment  for  printing,  having  in  possession 
and  giving  away,  an  obscene  and  indecent  picture,  was  suffi- 
cient under  a  provision  of  the  Illinois  Criminal  Code,  declaring 
that  an  indictment  should  be  deemed  sufficiently  technical  and 
correct,  which  stated  the  offense  in  the  terms  and  language  of 
the  statute  creating  the  offense,  or  so  plainlv  that  the  nature 
of  the  offense  could  be  easily  understood.  The  court,  speaking 
by  Mr.  Justice  Walker,  said  that  "  it  was  necessary  to  set  out 
the  supposed  obscene  matter  in  the  indictment,  unless  the  ob- 
scene publication  is  in  the  hands  of  the  defendant,  or  out  ol' 
the  power  of  the  prosecution,  or  the  matter  is  too  gross  and 
obscene  to  bo  spread  on  the  records  of  the  court,  either  of 
which  facts,  if  existing,  should  be  averred  in  the  indictment 
as  an  excuse  for  failing  to  set  out  the  obscene  matter;  that, 
whether  obscene  or  not,  is  a  question  of  law  and  not  of  fact; 
that  the  question  is  for  the  court  to  determine,  and  not  for  the 
jury."  To  the  same  effect  are  Fallerv.  The  Peojple,  92  111.  182, 
184;  State  v.  Smith,  17  R.  I.  371,  374-5. 

The  earlier  cases  were  fully  examined  by  Mr.  Justice  Blatch- 
ford,  when  he  was  a  judge  of  the  Circuit  Court,  in  United 
States  V.  Bennett,  16  Blatchford,  338,  351,  in  which  it  was 
charged  that  the  defendant  "  did  unlawfully  and  knowingly 
deposit,  and  cause  to  be  deposited,  in  the  mail  of  the  United 
States,  then  and  there,  for  mailing  and  delivery,  a  certain 
obscene,  lewd  and  lascivious  book,  called  '  Cupid's  Yokes,  or 
the  Binding  Forces  of  Conjugal  Life,'  which  said  lx)ok  is  so 
lewd,  obscene  and  lascivious,  that  the  same  would  be  ofl'ensivo 
to  the  court  here,  and  improper  to  bo  placed  upon  the  records 
thereof;  wherefore,  the  jurors  aforesaid  do  not  set  forth  tlic 
same  in  this  indictment."  Speaking  for  himself  and  Judges 
Benedict  and  Choate,  Mr.  Justice  Blatchford  said  :  "  In  the 
present  indictment,  the  defendant  had  information  given  to 
him  as  to  the  offense  charged,  by  the  date  of  the  mailing,  by 
the  title  of  the  book,  and  by  the  address  on  the  wra]i])er.  The 
indictment  states  the  reason  for  not  setting  forth  the  book  to 
be  that  it  is  too  obscene  and  indecent  to  be  set  forth.  A  copy 
of  the  book,  with  a  designation  of  the  obscene  passages  ivlied 
on,  could  have  been  obtained  before  the  trial,  by  asking  for  a 


r.  ■ 


ROSEN  V.  UNITED  STATES. 


201 


bill  of  particulars.  The  defenclanl.  was  not  deprived  of  the 
rio-ht '  to  be  informed  of  the  natuio  and  cause  of  the  accusa- 
tion.' The  weight  of  authority,  as  well  as  of  reasoning,  is  in 
favor  of  the  sufficiency  of  the  present  indictment." 

The  doctrine  to  be  deduced  from  the  American  cases  is,  that 
the  constitutional  right  of  the  defendant  to  be  informed  of 
the  nature  and  cause  of  the  accusation  against  him,  entitles 
him  to  insist,  at  the  outset,  by  demurrer  or  b}'  motion  to  quash, 
and  after  verdict  by  motion  in  arrest  of  judgment,  that  the 
indictment  shall  apprise  him  of  the  crime  charged  with  such 
reasonable  certainty,  that  he  can  make  his  defense  and  protect 
himself  after  judgment  against  another  prosecution  for  the 
same  offense;  that  this  right  is  not  infringed  by  the  omission 
from  the  indictment  of  indecent  and  obscene  matter,  alleged 
as  not  proper  to  be  spread  upon  the  records  of  the  court,  pro- 
vided the  crime  charged,  however  general  the  language  used, 
is  yet  so  described  as  reasonably  to  inform  the  accused  of  the 
nature  of  the  charge  sought  to  be  established  against  him;  and 
that,  in  such  case,  the  accused  may  appl}'^  to  the  court  before 
tlie  trial  is  entered  upon  for  a  bill  of  particulars,  showing  what 
parts  of  the  paper  would  be  relied  on  by  the  prosecution  as 
being  obscene,  lewd  and  lascivious,  which  motion  will  be 
granted  or  refused,  as  the  court,  in  the  exercise  of  a  sound 
legal  discretion,  may  find  necessary  to  the  ends  of  justice. 

The  refusal  of  the  court  to  arrest  the  judgment  was  not 
erroneous.  The  defendant  knew  from  the  indictment  itself 
what  paper  or  publication  would  be  offered  by  the  government 
in  evidence,  and  that  trie  prosecution  would  insist  that  the 
pictures  of  females  dis|)liiyed  in  that  paper  were  olweene,  lewd 
and  lascivious.  It  is  said  that  some  «)f  the  printed  matter  and 
pictures  in  the  ])aper  couKl  not  possibly  be  regarded  iisof  that 
class.  That  fact  is  not  disclosed  by  the  indictment.  Besides, 
the  failure  to  set  out  sucl  mattow  and  pictures  couMnot  have 
prejudiced  the  atvused.  The  paper  being  offered  in  evidence, 
if  it  api)cared  that  some  of  the  printed  matter  or  some  of  the 
pictures  were  not  obscene,  lewd  or  lascivious,  the  jury  could 
have  been  instructed  upon  that  sul)ject  at  the  instance  of  either 
party.  J]ut,  as  we  have  already  said,  the  defendant  tlid  not 
ask  for  a  bill  of  particulars  nor  object  to  the  indictment  as  in- 
sutilcient,  but  made  his  defense  upon  the  broad  ground  that 


i 


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%  -rAV. 


2G2 


AMERICAN  CRIMINAL  REPORTS. 


the  paper  that  he  caused  to  be  deposited  in  the  postoffico  was 
not  obscene,  lewd  or  lascivious. 

We  are  of  opinion  that  the  indictment  sufficiently  informed 
the  accused  of  the  nature  and  cause  of  the  accusation  against 
him,  and  that  there  was  no  legal  ground  for  an  arrest  of  the 
judgment. 

At  the  trial  below,  the  defendant,  by  his  counsel,  asked  the 
court  to  instruct  the  jury  that  he  should  be  acquitted,  if 
they  entertained  a  reasonable  doubt  whether  he  knew  that 
the  paper  or  publication  referred  to  in  the  indictment,  was  ob- 
scene. This  request  was  refused,  and  an  exception  was  taken 
to  the  ruling  of  the  court. 

This  request  for  instructions  was  intended  to  announce  the 
proposition  that  no  one  could  be  convicted  of  the  oiTensc  of 
having  unlawfully,  wilfully  and  knowingly  used  the  mails  for 
the  transmission  and  delivery  of  an  obscene,  lewd  and  lasciv- 
ious publication — although  he  may  have  had  at  the  time  actual 
knowledge  or  notice  of  its  contents — unless  he  knew  or  be- 
lieved that  such  paper  could  be  properly  or  justly  characterized 
as  obscene,  lewd  and  lascivious.  The  statute  is  not  to  be  so 
interpreted.  The  inquiry  under  the  statute  is  whether  the 
paper  charged  to  have  been  obscene,  lewd  and  lascivious  was 
in  fact  of  that  character;  and  if  it  was  of  that  character,  and 
was  deposited  in  the  mail  by  one  who  knew  or  had  notice  at 
the  time  of  its  contents,  the  offense  is  complete,  although  the 
defendant  himself  did  not  regard  the  paper  as  one  which  the 
statute  forbade  to  be  carried  in  the  mails.  Congress  did  not 
intend  that  the  question  as  to  the  character  of  the  paper 
should  depend  upon  the  opinion  or  belief  of  the  person  who, 
with  knowledge  or  notice  of  its  contents,  assumed  the  responsi- 
bility of  putting  it  in  the  mails  of  the  United  States.  The 
evils  that  Congress  sought  to  remedy  would  continue  and 
increase  in  volume,  if  the  belief  of  the  accused  as  to  what  was 
obscene,  lewd  and  lascivious  was  recognized  as  the  test  for 
determining  whether  the  statute  has  been  violated.  Every 
one  who  uses  the  mails  of  the  United  States  for  carrying 
papers  or  publications  must  take  notice  of  what,  in  this  enlighc- 
ened  age,  is  meant  by  decency,  purity  and  chastity  in  social 
life,  and  what  must  be  deemed  obscene,  lewd  and  lascivious. 

Another  contention  of  the  accused  is,  that  the  paper 
alleged  to  have  been  mailed  was  sent  in  response  to  a  decoy 


ROSEN  V.  UNITED    STATES. 


203 


letter,  and,  for  that  reason,  no  crime  was  committetl.  It  is 
only  necessary  to  say  that  that  question  has  heen  disposed  of 
adversely  to  the  defendant's  contention  by  Grimm  v.  United 
States,  15G  U.  S.  C04,  611.  In  that  case  it  was  said:  "The 
law  was  actually  violated  by  the  defendant;  he  placed  letters 
in  the  postoffice  which  conveyed  information  as  to  where  ob- 
scene matter  could  be  obtained,  and  he  placed  them  there  with 
a  view  of  giving  such  information  to  the  person  who  should 
actually  receive  those  letters,  no  matter  what  his  name;  and 
the  fact  that  the  person  who  wrote  under  those  assumed 
names,  and  received  his  letters  was  a  government  detective, 
in  no  manner  detracts  from  his  guilt."  That  doctrine  was 
a^ain  announced  in  Goodev.  United  States,  159  U.  S.  6G3,  669, 
in  which  case  it  was  said,  that "  certain  prohibited  pictures  and 
prints  were  drawn  out  of  the  defendant  by  a  decoy  letter 
written  by  a  government  detective,  was  no  defense  to  an  in- 
dictment for  mailing  such  prohibited  jmblications." 

It  is  also  assigned  for  error  that  the  court  left  it  to  the 
jury  to  say  whether  the  paper  in  question  was  obscene,  when 
it  was  for  the  courts,  as  a  matter  of  law,  to  determine  that 
question.  If  the  court  had  instructed  the  jury  as  matter  of 
law  that  the  paper  described  in  the  indictment  was  obscene, 
lewd  and  lascivious,  no  error  would  have  been  committed;  for 
the  paper  itself  was  in  evidence;  it  was  of  the  class  excluded 
from  the  mails,  and  there  was  no  dispute  as  to  its  contents. 

It  has  long  been  the  settled  doctrine  of  this  court  that  the 
evidence  before  the  jury,  if  clear  and  uncontradicted  upon  any 
issue  made  by  the  parties,  presented  a  question  of  law,  in 
respect  of  which  the  court  could,  without  usurping  the  func- 
tions of  the  jury,  instruct  them  as  to  the  principles  applicable 
to  the  case  made  by  such  evidence.  Pleasant  v.  Faut,  22  Wall, 
lie,  121;  Montdair  v.  Dana,  107  U.  S.  162;  Marshall  v.  Hub- 
hard,  117  U.  S.  415,  419;  Sy  rf  d;  JIansenv.  United  States,  156 
U.  S.  51,  99,  100.  Even  if  we  should  hold  that  the  court 
ought  to  have  instructed  the  jury,  as  a  matter  of  law,  that  the 
paper  was,  within  the  meaning  of  the  statute,  obscene,  lewd 
and  lascivious,  it  would  not  follow  that  the  judgment  should, 
for  that  reason,  be  reserved,  because  it  is  clear  that  no  injury 
came  to  the  defendant  by  submitting  the  question  of  the  char- 
acter of  the  paper  to  the  jury.  But  it  is  proper  to  add  that  it 
was  competent  for  the  court  below,  in  its  discretion,  and  even 


'i'h^ 


;K  :•'  3; 


1    isv'i.i 


264 


AMERICAN  CRIMINAL  REPORTS. 


if  it  had  been  inclined  to  regard  the  paper  as  obscene,  lewd 
and  lascivious,  to  submit  to  the  jury  the  general  question  of  the 
nature  of  the  paper,  accompanied  b}'  instructions  indicatinj^ 
the  princi|)les  or  rules  by  which  they  should  be  guided  in  de- 
termining what  was  an  obscene,  lewd,  or  lascivious  paper, 
within  the  contemplation  of  the  statute  under  which  the  in<lict- 
ment  was  framed.  That  is  what  the  court  did  when  it  charged 
the  jury  that  "  the  test  of  obscenity  is  whether  the  tendency 
of  the  matter  is  to  deprave  and  corrupt  the  morals  of  those 
whose  minds  are  open  to  such  influence,  and  into  whose  hands 
a  publication  of  this  sort  may  fall."  "  AVould  it,"  the  court 
said,  "suggest  or  convey  lewd  thoughts  and  lascivious 
thoughts  to  the  young  and  inexperienced?"  In  view  of  the 
character  of  the  paper,  as  an  inspection  of  it  will  instantly  dis- 
close, the  test  prescribed  for  the  jury  was  quite  as  liberal  as 
the  defendant  had  any  right  to  demand. 

Other  questions  are  discussed  in  the  elaborate  brief  fded  for 
the  defendant.  Some  of  them  do  not  require  notice;  others 
Avere  not  sufliciently  saved  by  exceptions,  at  the  proper  time, 
and  will  not,  therefore,  be  considered  or  determined. 

We  find  no  error  of  law  in  the  record,  and  the  judgment  is 
affirmed. 

Mr.  Justice  White,  with  whom  concurred  Mr.  Justice  Shieas, 
dissenting. 

Mr.  Justice  Shiras  and  myself  are  unable  to  concur  in  the 
opinion  and  judgment  of  the  court.  Thinking,  as  we  do,  that 
the  consequence  of  the  affirmance  of  the  judgment  is  to  de- 
prive the  accused  of  rights  guaranteed  to  him  under  the  Con- 
stitution of  the  United  States,  we  are  impelled  to  state  the 
reasons  for  our  dissent. 

It  was  claimed  at  the  bar  of  this  court  that  the  indictment 
was  absolutely  void,  because  it  failed  to  set  forth  an  offense 
atrainst  the  law  of  the  United  States.  This  contention  rested 
on  two  propositions :  First,  that  the  indictment  did  not,  on  its 
face,  contain  a  statement  of  the  obscene  matter  charged  to 
have  been  illegally  mailed;  second,  because,  even  if  the  failure 
to  so  state  was  excused  by  the  allegation  in  the  indictment, 
that  the  matter  w^as  too  obscene  and  offensive  to  be  repeated; 
the  indictment  was  none  the  less  absolutely  void,  because  it 


^  yn 


ROSEN  V.  UNITED  STATES. 


205 


failed  to  ^ive  an  identifying  reference  to  that  which  the  grand 
jury  found  to  be  obscene. 

if  these  objections  bo  well  founde^l,  they  are  necessarily 
apparent  on  the  face  of  the  record.  They  go  to  the  jurisdic- 
tion of  the  court  ratione  materm.  Tliey  consequently  demand 
consideration  whether  or  not  they  were  presented  to  the  court 
below,  or  have  been  regularly  assignal  for  error  here.  Mon- 
tana  Railway  Co.  v.  Wai'i'en^  137  U.  S.  348,  351.  The  questions, 
then,  are : 

Fb'd.  Was  it  neeesmrt/  to  spi'cad  the  matte)'  alleged  to  he 
obscene  in  full  in  the  indictment,  and  was  the  failure  to  do  so 
cxcmed  hy  the  allegation  in  the  indictment  that  it  was  too  offen- 
sive to  be  put  on  the  record  f 

It  is  unquestioned  that  the  English  rule  requires,  where  ob- 
scene words  are  relied  upon,  that  the  obscene  matter  should 
be  set  out  explicitly  in  the  indictment,  and  that  the  averment 
that  it  is  too  obscene  to  bo  so  stated  is  insufficient  to  excuse  the 
omission.  Regina  v.  Bradlaxigh,  3  Q.  B.  Div.  621.  But  this 
is  not  the  doctrine  of  the  American  courts.  At  the  time  Re- 
gina V.  Bradlaugh  was  decided  the  contrary  rule  had  been 
announced  in  several  leading  cases  in  this  country,  and  the 
court  in  the  Bradlaugh  case  said :  "  In  support  of  this  conten- 
tion for  the  Crown  some  American  cases  were  cited.  Decisions 
in  the  courts  of  the  United  States  are  not  binding  authorities, 
and  although  they  may  be  expressly  in  point,  yet,  if  they  are 
contrary  to  our  law,  they  must  be  disregarded."  The  cases 
thus  referred  to  have  since  been  followed  by  many  other 
American  authorities,  so  that  the  question  may  be  considered 
in  this  country  as  determined  adversely  to  the  English  rule. 
Commonwealth  v.  Holmes,  17  Mass.  336 ;  Commonwealth  v. 
Tarhox,  1  Cush.  66 ;  People  v.  Girardin,  1  Michigan,  90 ;  State 
V.  Pennington,  5  Lea,  506 ;  McNair  v.  People,  89  Illinois,  441 ; 
Fuller  V.  People,  92  Illinois,  182 ;  State  v.  Broion,  27  Vermont, 
619;  State  v.  Grijfin,  43  Texas,  538;  State  v.  Smith,  17  K.  I. 
371;  Commonioealth  V.  P^Jardin,  12Q  Mass.  46;  Commonwealth 
V.  Wright,  139  Mass.  382 ;  Commonwealth  v.  McCanoe,  164 
Mass.  162 ;  Utiited  States  v.  Bennett,  16  Blatchford,  338.  It 
was  with  reference  to  this  well  settled  view  that  in  Grimm  v. 
United  States,  156  U.  S.  604,  in  speaking  of  sending  obscene 
matter  through  the  mails,  the  court  said  (p.  608):  "The 
charfje  is  not  of  sending  obscene  matter  through  the  mails,  in 


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which  case  some  description  might  be  necessary,  both  for 
identification  of  the  offense,  and  to  enable  the  court  to  deter- 
mine whether  the  matter  was  obscene,  and,  therefore,  non- 
mailable.  Even  in  such  cases  it  is  held  that  it  is  unnecessary  to 
spread  the  obscene  matter  in  all  its  filthiness  upon  the  record; 
it  is  enough  to  so  far  describe  it  that  its  obnojcious  character 
may  be  discerned." 

Second.  Where  the  obscene  matter  is  not  spread  upon  the  face 
of  the  indictment,  and  is  excused  under  the  averment  that  it 
would  he  offensive  to  morality  to  do  so,  is  the  indictment  valid 
where  it  gives  no  specific  reference  identifying  the  matter  found 
hy  the  grand  jury  to  he  ohscene,  thus  rendering  it  im,po88ihle  to 
determine  upon  what  tJie  grand  jury  hased  its  presentment  f 

In  considering  this  question  it  must  be  borne  in  mind  that 
imprisonment  at  hard  labor  in  the  penitentiary  is  the  penalty 
which  may  be  imposed  for  sending  obscene  matter  through 
thv  mails;  hence  the  offense  is  an  infamous  one.  Mackin  v. 
United States,n7  U.  S.  348;  Ev  parte  Wilson,  114  U.  S.  417; 
In  re  Clausen,  140  U.  S.  200.  It  must  also  be  considered  that, 
being  an  infamous  offense,  the  prosecution  can,  under  the 
Fifth  Amendment  of  the  Constitution,  only  be  by  indictment. 
The  necessity  for  identifying  references  in  the  indictment,  to 
the  obscene  matter  upon  which  the  grand  jury  makes  its 
finding,  is  an  essential  part  of  the  rule,  dispensing  with  the 
obligation  of  stating  the  obscene  matter,  in  so  many  words,  in 
the  indictment.  Tlie  reason  upon  which  the  English  rule  rests 
is  that  spreading  in  full  the  obscene  matter  is  essential  to 
protect  the  accused  in  his  rights,  to  enable  him  to  move  to 
quash,  or  in  arrest  of  judgment,  or  to  present  on  review  by 
error  the  validity  or  invalidity  of  the  indictment.  The  Amer- 
ican rule  is  based  upon  the  reason  that  such  spreading  upon 
the  record  is  not  essential  to  protect  the  rights  of  the  accused, 
because  the  obscene  matter,  passed  on  by  the  grand  jury,  can 
be  so  identified  b}'  a  reference  to  it  in  the  indictment  as  to 
enable  it  to  be,  by  bill  of  particulars  or  otherwise,  readily  sui> 
plied  for  all  the  purposes  of  defense;  hence,  the  omission 
deprives  the  accused  of  no  substantial  right,  whilst  subserving 
the  ends  of  public  morality  and  decency. 

The  authorities  make  this  clear.  Thus,  in  Grimm  v.  United 
States,  uhi  sup.,  the  court  said :  "  It  is  enough  to  so  far  de- 
scribe it  (obscene  matter),  that  its  obnoxious  character  may 


ROSEN  V.  UNITED  STATES. 


267 


il''^ 


be  discerned."  And  the  reason  which  exacted  this  reference 
was  declared  to  be  "  both  for  identification  of  the  oflFense  and 
to  enable  the  court  to  determine  whether  the  matter  was  ob- 
scene and,  therefore,  n  on -mailable."  In  Commonwealth  v. 
McCance,  supra,  the  mdictment  charged  the  accused  with 
"  selling  a  certain  book  then  and  there  called  *  The  Decam- 
eron of  Boccaccio,'  and  which  said  book  upon  the  title  page 
thereof  was  then  and  there  of  the  tenor  following  (describing 
the  title  page),  *  *  *  which  said  book  then  and  there 
contained,  among  other  things,  certain  obscene,  indecent  and 
impure  language,  *  *  *  which  said  book  is  so  lewd,  ob- 
scene, indecent  and  impure,  that  the  same  would  be  offensive 
to  the  court  and  improper  to  be  placed  upon  the  records 
thereof."  The  cr  jrt,  whilst  fully  recognizing  the  rule  which 
renders  it  unnecessary  to  spread  obscene  matter  in  the  indict- 
ment, also  applied  the  principle  which  holds  that  Avhere  such 
matter  is  not  put  upon  the  record,  there  must  be  an  identify- 
inw  reference  in  the  indictment,  so  that  it  may  be  determined 
from  the  face  thereof  what  was  the  particular  matter  upon 
which  the  grand  jury  acted.  In  consequence  of  so  holding, 
the  judgment  was  reversed  and  the  verdict  set  aside.  See 
also,  Bahcock  v.  United  States,  34  Fed.  Rep.  873. 

Indeed,  the  correctness  of  the  ruling  in  Commonwealth  v. 
McCance,  we  think  results  from  the  very  nature  of  things.  It 
being  unquestionable  that  a  grand  jury  must  find  an  indict- 
ment in  order  that  the  prosecution  be  valid,  how  can  it  be  said 
that  there  has  been  such  a  presentment,  when  on  the  very 
face  of  the  record  it  is  absolutely  impossible  to  determine 
what  matter  the  grand  jur\^  charged  to  be  obscene  ?  To  say 
that  it  can  be  supplied  by  a  bill  of  particulars  or  otherwise  is 
a  misconception,  for  it  becomes  impossible  to  supply  that  which 
does  not  legally  exist.  The  constitution  requiring  that  the 
grand  jury  should  find  the  indictment,  neither  the  court,  the 
prosecuting  officer  nor  any  one  else  have  power  to  create  the 
necessary  averments  to  make  that  an  indictment  which  other- 
wise would  be  no  indictment  at  all.  This  case  illustrates  the 
danger  of  departing  from  constitutional  safeguards.  The 
f!;eneral  rule  requires  an  indictment  to  be  specific.  StejiJiens  v. 
State,  Wright  (Ohio),  73;  Commonwealth  v.  Gillespie,  7  S.  & 
R.  496;  Commonwealth  v.  Stow,  1  Mass.  54;  Conimomcealth  v. 
Bailey,  1  Mass.  62;  Commonwealth  v.  Sweney,  10  S.  &  K.  1 73; 


\-h 


268 


AMERICAN  CRIMINAL  REPORTS. 


Commonwealth  v.  Wright,  1  Cush.  46;  Commonicealth  v.  Tar- 
lox,  1  Cush.  QQ;  Commonwealth  v.  Houghton,  8  Mass.  107; 
King  V.  Beere,  12  Mod.  219;  State  v.  Parker,  1  D.  Chipman 
(Vermont),  298;  see,  also,  Commonwealth  v.  Stevens,  1  Mass. 
203.  To  this  rule  there  has  been  evolved  an  exception.  This 
exception,  as  we  have  said,  is  that  where  the  publication  or 
mailing  of  obscene  matter  is  charged  by  a  grand  jury,  such 
matter  need  not  be  stated  in  the  indictment,  provided  in  that 
instrument  it  be  referred  to  and  identified.  Under  the  ruling 
now  announced,  it  seems  to  us  that  the  exception  is  made  to 
destroy  the  rule,  and  that  an  indictment  is  held  to  be  valid 
even  although  it  makes  no  reference  whatever  to  the  matter 
relied  on  to  show  guilt.  Thus  the  qualification  as  to  the  iden- 
tifying, reference  by  which  alone  the  exception  is  justified, 
disapi)ears,  and  the  result  logically  leads  to  the  recognition  of 
the  right  of  a  grand  jury  to  present,  without  stating  or  refer- 
ring to  the  facts  upon  which  its  presentment  is  made,  and  also 
concedes  the  power  of  a  prosecuting  oflBcer  to  supply  matter 
in  an  indictment,  and  thus  make  that  which  is  absolutely  void 
a  valid  instrument.  The  wisdom  of  the  rule  announced  in 
Commonwealth  v.  McCance  was  well  illustrated  by  the  indict- 
ment presented  in  that  case,  as  it  is  by  the  alleged  indictment 
under  consideration  here.  Will  it  be  said  that  an  indictment 
which  charged  that  an  accused  published  obscene  matter  con- 
tained in  twenty  volumes  of  books  called  the  Encyclopitdia 
Britannica  of  Americana,  giving  the  title  page,  and  followed 
by  the  statement  that  a  more  minute  description  would  be 
offensive  to  morality,  would  be  adequate  ?  And  yet  what 
difference  would  exist,  except  in  degree,  between  such  an  in- 
dictment and  the  one  here  held  to  be  valid  ?  Nor  is  it  logical 
to  say  that  as  an  accused  has  no  right  to  know  the  secrets  of 
a  grand  jury  room,  therefore  he  is  not  entitled  to  be  informed 
as  to  the  matter  up9n  which  the  grand  yiry  bases  its  present- 
ment. The  Constitution  forbids  in  a  certain  class  of  cases 
prosecution  except  by  indictment,  and,  therefore,  to  the  extent 
that  such  knowledge  is  essential  to  constitute  a  valid  instru- 
ment, the  accused  is  entitled,  under  the  Constitution,  to  know 
the  secrets  of  the  grand  jury  room. 

If  these  views  as  to  the  necessity  of  an  identifying  reference, 
supported,  as  we  think  they  are,  by  the  statement  of  the  court 
in  Grimm  v.  United  States,  and  the  ruling,  of  the  Supreme 


ROSEN  V.  UNITED  STATES. 


269 


Court  of  Massachusetts  in  Commonwealth  v.  McCance,  be  sound, 
their  application  to  this  case  is  clear. 

The  language  of  the  indictment,  whilst  it  identifies  the  pa- 
per as  an  entirety,  fails  in  any  degree  to  designate  what  mat- 
ter therein,  whether  words  or  picture,  was  found  to  be  obscene 
bv  the  grand  jury,  and  upon  which  their,  presentment  was 
made.  It  is  impossible  from  the  mere  description  of  the  title 
page  of  the  paper,  and  the  averment  that  it  contains  twelve 
pages  and  was  published  on  a  particular  day,  to  in  any  way 
ascertain  what  part,  whether  pictures  or  print,  contained  in 
the  twelve  pages,  was  acted  on  by  the  grand  jury.  In  other 
words,  using  the  identification  of  the  paper  given  by  the  in- 
dictment, the  mind  looks  in  vain  for  any  reference  to  the  par- 
ticular things,  found  in  the  paper,  which  were  considered  as 
within  the  statute. 

Nor  can  it  be  correctly  said  that  the  alleged  indictment  un- 
der consideration  charged  that  each  and  every  part  of  the 
newspaper  was  obscene,  and  therefore  the  grand  jury  found 
the  whole  paper  was  of  that  character,  thus  identifying  the 
whole. 

It  will  be  seen,  from  an  examination  of  the  indictment,  that 
its  language  expressly  charges  that  only  portions  of  the  pub- 
lic, h'on  to  which  it  refers  are  obscene.  The  paper  to  which  the 
indictment  relates  is  twelve  pages  of  the  ordinary  size  of  illus- 
trated papers,  with  a  title  page  as  described  in  the  indictment. 
Three  of  its  pages  are  devoted  to  advertisements;  all  the 
other  pages,  except  the  sixth  and  seventh,  contain  pictures  and 
printed  matter.  The  excepted  pages  contain  only  pictures, 
which  are  blackened  over  in  part  so  as  to  seemingly  conceal 
them,  and  yet  leaving  enough  unblackened  to  suggest  the  sub- 
jects which  they  depict.  The  eighth  page  has  similar  pictures 
along  with  the  printed  matter.  After  describing  the  title 
page  of  the  paper  and  the  picture  thereon,  the  indictment  says, 
"and  the  said  paper  consists  of  twelve  pages,  minute  descrip- 
tion of  which,  with  the  pictures  therein  and  thereon,  would  be 
ofifensive  to  the  court  and  improper  to  spread  upon  the  records 
of  the  court,  because  of  their  obscene,  lewd  and  indecent  mat- 
ters." This  is  not  an  allegation  that  tbe  entire  contents  of  the 
publication  were  obscene,  because  if  that  was  intended  there 
would  be  no  necessity  of  referring  to  a  "  minute  description  " 
of  the  paper  as  essential  to  disclose  the  obscene  matter.    It  can, 


Wf 


ni 


m 


I     >    a"? 


,1l 


i 


5  J ,.    . 


270 


AMERICAN  CRIMINAL  REPORTS. 


,_^« 


I    1 


reasonably,  onl)'  bear  the  construction  that  the  publication  was 
claimed  to  be  obscene  because  of  "  obscene,  lewd  and  indecent 
matters"  appearing  somewhere  in  the  publication.  It  is  evi- 
dent, therefore,  that  particular  matter  contained  in  the  twelve 
pages  was  contemplated,  and  that  the  indictment  furnishes  no 
means  for  ascertaining  in  what  this  matter  consists,  by  refer- 
ence or  otherwise. 

It  is  clear  that  the  defenses  here  advanced,  if  they  be  well 
founded,  assert  not  that  the  indictment  is  formally  defective, 
but  that  it  fails  on  its  face  to  state  an  offense.  The  defect  is 
therefore  not  one  of  form  under  Rev.  Stat.  §  1025.  On  both 
principle  and  authority  such  error  goes  to  the  existence  of  the 
indictment,  and  consequently  is  essentially  one  of  substance. 
£x  parte  Bain.  121  U.  S.  1.  This  is  especially  applicable  to  a 
case  where,  by  the  Constitution,  the  accused  can  not  be  pros- 
ecuted except  on  presentment  by  a  grand  jury.  That  the 
mere  silence  or  acquiescence  of  the  accused  can  not  deprive 
him  of  his  constitutional  right  is  obvious.  In  JTopt  v.  Utah, 
110  U.  S.  574,  speaking  through  Mr.  Justice  Harlan,  the  court 
said  (579): 

"  We  are  of  the  opinion  that  it  was  not  within  the  power  of 
the  accused  or  his  counsel  to  dispense  with  the  statutory 
requirements  as  to  his  personal  presence  at  the  trial.  The 
argument  to  the  contrary  necessarily  proceeds  ion  the  ground 
that  he  alone  is  concerned  as  to  the  mode  by  which  he  ma}' 
be  deprived  of  his  life  or  liberty,  and  that  the  chief  object  of 
the  prosecution  is  to  punish  him  for  the  crime  charged.  But 
this  is  a  mistaken  view,  as  well  of  the  relations  which  the 
accused  holds  to  the  public,  as  of  the  end  of  human  punish- 
ment. '  The  natural  life,'  says  Blackstone,  *  can  not  legally  be 
disposed  of  or  destroyed  by  an  individual,  neither  by  the  per- 
son himself,  nor  by  any  other  of  his  fellow-creatures,  merely 
upon  their  own  authority.'  (1  Bl.  Com.  144.)  The  public  has 
an  interest  in  his  life  and  liberty.  Neither  can  be  lawfully 
taken  except  in  the  mode  prescribed  by  law.  That  which  the 
law  makes  essential  in  proceedings  involving  the  deprivation 
of  life  or  liberty  can  not  be  dispensed  with  or  affected  by  the 
consent  of  the  accused,  much  less  by  his  mere  failure,  when  on 
trial  and  in  custody,  to  object  to  unauthorized  methods.  The 
great  end  of  punishment  is  not  the  expiation  or  atonement  of 
the  offense  committed,  but  the  prevention  of  future  offenses 


ROSEN  V.  UNITED  STATES. 


271 


'»:  a 


of  the  same  kind.  (4  Bl.  Com.  11.)  Such  being  tho  relation 
which  the  citizen  holds  to  the  public,  and  the  object  of  pun- 
ishment for  public  wrongs,  the  Legislature  has  deemed  it 
essential  to  the  protection  of  one  whose  life  or  liberty  is 
ii  srolved  in  a  prosecution  for  felony,  that  he  shall  be  person- 
ally present  at  the  trial;  that  is,  at  every  stage  of  the  trial 
when  his  substantial  rights  may  be  affected  by  the  proceedings 
at^ainst  him.  If  he  be  deprived  of  his  life  or  Hberty  without 
being  so  present,  such  deprivation  would  be  without  that  due 
Drocess  of  law  required  by  the  Constitution." 

Doubtless  it  was  like  reasoning  which  caused  the  court  in 
Commonwealth  v.  Maker,  16  Pick.  120,  to  refuse,  in  a  capital 
case,  to  allow  an  amendment  as  to  a  matter  of  substance,  even 
with  the  consent  of  the  prisoner,  and  which  also  made  the 
court  in  Gornmonwealih  v.  McCance  set  aside  the  verdict  against 
the  accused.  In  accora  w-'th  this  view  is  the  doctrine  which 
denies  the  power,  even  hy  statute,  to  authorize  amendments 
which  substantially  change  an  indictment.  The  result  of  the 
authorities  to  this  effect  is  thus  stated  by  Bishop :  "  If,  in  a 
case  where  the  Constitution  gives  the  defendant  the  right  to  be 
tried  by  an  indictment,  the  Legislature  should  undertake  to 
authorize  such  amendments  as  leave  the  indictment  no  lonffer 
the  finding  of  tiie  grand  jury,  an  amendment  under  it  would 
oust  the  jurisdiction  of  the  court,  and  the  cause  must  stop. 
Such  is  the  substance  of  the  authorities,  though  the  doctrine 
is  not  always  stated  in  these  words."  (1  Bish.  New  Crim. 
Pro.,  §  97,  p.  55,  and  authorities  there  cited;  Whart.  Crim.  PI. 
&  Prac,  §  90,  sub.  2,  and  authorities  there  cited.)  The  legis- 
lative authority  not  being  competent  to  authorize  an  amend- 
ment so  as  to  convert  a  void  into  a  valid  indictment,  surelv  a 
prosecuting  officer  can  have  no  such  power. 

The  indictment,  being,  as  we  think,  fatally  defective  in  fail- 
ing to  state  an  offense,  which  defect  could  not  be  supplied  in 
the  court  below,  and  can  not  be  so  supplied  here  without  con- 
verting an  absolutely  void  into  a  valid  indictment,  and  thus 
violating  the  Constitution,  which  secures  the  accused  an  im- 
munity from  prosecution  except  upon  presentment  by  a  grand 
jury,  the  verdict  and  judgment  should  be  reversed. 


'•  iV 


'.%i 


272 


AMERICAN  CRIMINAL  REPORIS. 


^9 


State  v.  Plant. 

((VrVt.  454.)    •   • 

DisORDEBLT  HouSE:    Indictment—  Proof—  Election— Reputation— Revert. 

ible  error. 

1.  Under  an  indictment  of  a  single  count  charging  the  keeping  of  a  house 

of  ill  fame  between  certain  days  at  a  certain  town,  it  was  error  to  admit 
proof  that  respondent  had  kept  such  a  house  during  such  <time  at  more 
than  one  place  in  said  town. 

2.  On  a  prosecution  for  keeping  a  house  of  ill  fame,  under  the  statute 

making  penal  the  keeping  of  "  a  house  of  ill  fame,  resorted  to  for  tlie 
purpose  of  prostittition  or  lewdness,"  it  was  material  error,  in  the 
absence  of  a  showing  that  respondent  was  not  prejudiced,  to  admit 
proof  that  the  character  of  the  house  was  reputed  to  be  bad. 

Exceptions  from  Caledonia  County  Court;  Tyler,  Judge. 
Elizabeth  Plant  was  convicted  of  keeping  a  house  of  ill  fame, 
and  excepts.    Ueversed. 

Ilenry  C.  Bates,  State's  Attorney,  for  the  State. 
Dunnett  <&  Nelson,  for  respondent. 

EowELL,  J.  The  prisoner  is  informed  against  in  one  count 
for  keeping  a  certain  house  of  ill  fame  at  St.  Johnsbury,  on 
such  a  day,  and  on  divers  other  days  and  times  between  that 
day  and  the  day  of  the  filing  of  the  information.  On  trial  the 
State  first  introduced  evidence  to  prove  the  keeping  of  such  a 
house  in  a  certain  building  on  a  certain  street  in  the  village  of 
St.  Johnsbury,  within  the  time  alleged.  It  was  then  allowed 
to  introduce  evidence  to  prove  the  keeping  by  the  prisoner  of 
two  other  such  houses  on  a  certain  other  street  in  said  village, 
at  different  times  before  the  time  alleged,  and  the  keeping  of 
one  of  them  again  after  the  keeping  of  the  one  first  mentioned, 
within  the  time  alleged,  and  to  use  such  evidence  as  further 
and  substantive  ground  for  conviction,  on  the  theory  that  the 
crime  is  cumulative  to  an  extent  to  warrant  that.  Now,  the 
gist  of  this  crime  is  the  keeping  of  the  house;  and,  although 
the  crime  may  have  continuance  by  the  repetition  of  the  con- 
duct that  gives  character  to  the  house,  yet  that  continuity 
may  be  broken,  so  that  separate  and  distinct  offenses  will  be 


STATE  V.  PLANT. 


2T3 


committed;  and  it  is  thus  broken  when  the  business  is  given  up 
at  one  phice,  and  resumed  at  another  and  a  different  place,  for 
then  the  keeping  of  the  former  house  is  completed  and  ended, 
and  as  the  keeping  is  the  gist  jof  the  crime,  the  crime  itself  is 
equally  completed  and  ended,  and  the  resumption  of  the  busi- 
ness at  the  other  place  is  a  separate  and  distinct  keeping,  and 
so  a  separate  and  distinct  crime,  and  there  are  as  many  crimes 
as  there  are  separate  and  distinct  keepings  of  separate  and  dis- 
tinct houses,  and,  for  the  purposes  of  this  case,  we  will  say  at 
separate  and  distinct,  though  successive,  times.  There  is  noth- 
ing in  the  nature  of  the  offense  opposed  to  this  view,  which  is 
supported  by  State  v.  Zee,  80  Iowa,  75,  45  N".  W.  545,  which 
was  an  indictment  in  one  count  for  keeping  a  house  of  ill  fame. 
During  the  trial  the  prisoner  asked  that  the  State  be  compelled 
to  elect  whether  it  woukl  proceed  on  the  theory  that  the  house 
of  ill  fame  was  located  in  the  first  story  of  the  building  occu- 
pied by  the  prisoner  or  the  second  story;  but  it  was  held  that 
all  the  rooms  were  properly  treated  as  constituting  but  one 
building,  and  that,  therefore,  the  court  properly  refused  to 
compel  the  State  to  elect. 

A  house  of  ill  fame  is  a  nuisance  at  common  law,  for  it  holds 
out  allurements  to  a  miscellaneous  and  common  bawdry,  cor. 
rupting  to  the  public  morals;  and  nuisances,  though  successive 
and  alike  in  kind,  are  distinct  in  offense.  A  man  erects  a 
nuisance  on  a  public  street,  and  continues  it  there  for  a  time. 
He  commits  an  offense.  He  abates  that  nuisance,  and  straight- 
way erects  another  like  it  on  another  street.  He  commits  an- 
other offense.  But  it  is  said  that  State  v.  Nixon,  18  Vt.  70,  is 
opposed  to  the  view  we  take.  That  was  an  indictment  in  one 
count  for  keeping  a  house  of  ill  fame  at  Burlington,  on  such  a 
day,  and  on  divers  other  days  and  times  between  that  day  and 
the  day  of  taking  the  inquisition.  On  motion  in  arrest,  it  was 
objected  that  the  indictment  was  insufficient,  for  that  the  local 
situation  of  the  house  was  not  stated,  nor  even  sufficiently  al- 
leged to  be  in  any  town  or  county.  The  court  said  that  the 
offense  is  local,  and  must  be  described  as  committed  in  a  par- 
ticular town,  and  that  the  State  is  confined  in  its  proof  to  that 
town,  and  can  not  prove  an  offense  anywhere  in  the  county, 
and  that  a  more  particular  description  of  the  house  was  not 
required.  This  decided  the  point,  but  the  court  went  on  to  say 
that  a  conviction  on  the  indictment  would  be  a  bar  to  any  other 
18 


■m 


-m 


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i    .1 


I, 


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h^ 


H 


274 


AMEMCAN  CRIMINAL  REPORTS. 


I  III    m^ 


l;r::.;^ 


prosecution  for  keeping  a  similar  house  in  the  same  town  dur- 
ing the  time  alleged.  No  reason  is  given  for  this,  but  it  seems 
to  indicate  that  the  court  thought  that  the  keeping  of  a  similar 
house  in  the  same  town  during  the  time  alleged  would  be  but 
part  and  parcel  of  the  offense  for  which  conviction  Avas  had. 
If  this  is  what  the  court  meant,  we  do  not  agree  with  it,  for 
the  reasons  we  have  given. 

As  there  was  but  one  count  in  the  information  in  the  case  at 
bar,  there  could  bo  a  conviction  of  only  one  offense;  and,  as 
the  State's  testimony  tended  to  show  several  offenses,  it  should 
have  been  put  to  elect  for  which  it  would  go,  and  it  was  error 
to  allow  it  to  go  for  all  as  one  offense. 

The  statute  makes  penal  the  keepmg  of  *'  a  house  of  ill  fame, 
resorted  to  for  the  purpose  of  prostitution  or  lewdness."  In 
some  of  the  states  similar  statutes  are  construed  to  require 
proof  that  the  house  had  an  ill  fame  in  order  to  convict.  That 
construction  has  prevailed  to  some  extent  in  this  state  at  nisi 
prius;  but  we  regard  it  as  illogical  and  unsound.  It  amounts 
to  saying  that,  however  bad  the  house  is  in  point  of  fact,  it  is 
no  offense  under  the  statute  to  keep  it  if  it  has  not  an  ill  fame. 
This  is  keeping  clean  the  outside  of  the  house,  while  the  inside 
is  full  of  prostitution  and  lewdness.  Certain  ancient  sects  did 
like  things,  and  a  woe  was  pronounced  upon  them  for  it  by 
the  highest  authority.  The  words  "  ill  fame  "  are  used  in  the 
statute  to  give  name  and  character  to  the  house,  and  do  not 
refer  to  its  reputation.  Both  at  common  law  and  in  common 
parlance  the  words  "house  of  ill  fame"  mean  a  house  resorted 
to  for  the  purpose  of  prostitution;  and  hence,  to  say  of  one  that 
he  keeps  a  house  of  ill  fame,  without  more,  is  to  charge  the 
exact  offense  punished  by  the  statute,  and  is  actionable  per  se; 
and  an  imiendo  that  an  accusation  of  the  crime  of  keeping  a 
house  of  ill  fame  was  thereby  meant  is  sufficient,  without  using 
the  remaining  words  of  the  statute.  Posnett  v.  Marble,  62 
Vt.  481.  The  gist  of  the  offense  is  the  keeping  of  the  house, 
irrespective  of  its  fame.  The  statute  aims  at  the  fact,  not  the 
fame;  at  the  substance,  not  the  shallow.  It  follows,  ther  )fore, 
ill  fame  of  the  house  not  being  an  element  of  the  offenso,  that 
it  was  not  only  unnecessary  to  prove  it,  but  that  evid  ^nce  of 
it  was  irrelevant  to  any  issue  involved,  for  all  the  cases  hold 
that  the  character  of  the  house  can  not  be  shown  by  proof  of 
its  reputation;  for  that  purpose  the  testimony  is  mere  hearsay. 


STATE  V.  PLANT. 


275 


It  is  unnecessary  to  refer  at  length  to  the  authorities  on  this 
question.  We  think  the  weight  of  judicial  opinion  sustains 
the  view  we  take.  A  pretty  full  discussion  of  the  subject  will 
be  found  in  llenaon  v.  State,  62  Md.  231,  50  Am.  Hep.  204  and 
note;  and  in  State  v.  Lee,  80  Iowa,  75. 

But  it  is  said  that  if  it  was  not  necessary  to  prove  ill  fame, 
and  evidence  of  it  was  irrelevant,  the  prisoner  was  not  harmed 
by  it,  for  that  its  only  effect  was  to  impose  an  unnecessary 
burden  on  the  State,  which  helped  rather  than  harmed  the 
prisoner.  Although  irrelevancy  alone  is  not  cause  for  re- 
versal, but  the  testimony  must  have  been  such  that  it  might 
prejudice  the  excepting  party  on  an  issue  involved  {Boutelle  v. 
Fire  Ins.  Co.,  51  Vt.  4),  and  although,  presumably,  the  court 
tried  to  confine  this  testimony  to  the  question  of  reputation, 
vet  it  is  so  often  true  that  reputation  is,  to  the  common  mind 
at  least,  indicative  that  the  fact  is  as  reputed  to  be,  that  we 
can  not  say  the  prisoner  was  not  harmed  by  the  testimony. 
Indeed,  we  think  it  more  likely  that  she  was  harmed  than  that 
she  was  not.  It  certainly  is  not  clear  that  she  was  not,  as  it 
must  be,  in  order  to  make  the  error  non-reversible. 

A  woman,  called  as  a  witness  by  the  State,  testified  to  hav- 
ing seen  a  man  on  the  bed  with  the  prisoner  in  her  house.  On 
cross-examination,  after  having  testified  to  the  condition  of 
the  bed,  and  that  they  were  on  it  and  dressed,  she  was  asked 
what  they  were  doing,  and  replied,  "  Ask  them."  She  was 
again  asked,  and  replied,  "  I  am  not  obliged  to  tell."  She  was 
again  asked,  whereupon  the  court  said  it  saw  no  occasion  for 
pressing  inquiry  further  in  that  direction,  and  prohibited  it. 
Although  cross-examination  is  a  right,  yet  the  to  -rt  may  con- 
trol the  exercise  of  it  to  any  extent  that  does  not  nfringe  the 
right  itself.  This  control  is  often  exercised,  and  never  more 
properly  than  in  prohibiting  details  that  may  be  offensive 
when  intimation  and  suggestion  will  convey  the  meaning  of 
the  witness  just  as  well.  Whether  in  this  case  the  meaning 
of  the  witness  had  been  sufficiently  conveyed,  and  her  credi- 
bility sufficiently  tested,  when  the  cross-examination  was 
stopped,  is  difficult  to  tell.  Some  of  us  think  thej''  had  not 
been,  and  that  the  right  of  cross-examination  was  infringed; 
while  others  think  we  can  not  say  that,  because  the  trial  court 
saw  the  witness  and  noted  the  attendant  circumstances,  and  so 


\;i;ii 


s?^! 


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Ni'!! 


)?■ 


276 


AMERICAN  CRIMINAL  REPORTS. 


could  jutlge  better  than  we  can  when  the  examination  liad  gone 
fiir  enough  to  accomplish  its  legitimate  ends. 

There  is  no  need  of  considering  the  other  points  of  excep- 
tion, as  the  questions  raised  are  largely  eliminated  by  the 
holding  on  the  second  point  considered,  and  the  remainder  do 
not  inhere  in  the  case  at  all,  and  can  scarcely  again  arise. 
Exceptions  sustained,  judgment  reversed,  verdict  sot  aside,  and 
cause  remanded  for  a  new  trial. 

"NoTZ.— Resort  for  immoral  perHons. — A  prosenition  for  the  common-lnw 
offense  of  keeping  a  disorderly  house  may  he  sustained  by  proof  that  hiu-Ii 
house  was  resorted  to  by  immoral  persons  for  the  purpose  of  prostitution, 
without  evidence  that  it  was  otherwise  disorderly.  Com.  v.  QuoduU,  Kio 
Mass.  588.    Knowlton,  J.,  dissenting. 

Indictment — Two  offeuaea. — An  indictment  alleging  that  defendant  did 
keep  and  maintain  a  disorderly  house,  and  a  house  where  lewd  persons  did 
resort,  does  not  state  two  offenses.    State  v.  De  Ladson,  66  Conn.  7. 

Disorderly  cond.  ict. — City  ordinance  providing  a  punishment  for  disor- 
derly conduct  is  valid,  in  so  for  as  it  does  not  conflict  with  state  law. 
State  V.  Sherard,  117  N.  C.  716. 

To  call  one  a  "  damned  highway  robber,"  in  a  public  restaurant,  in  n 
voice  so  loud  as  to  be  heard  on  the  street,  is  properly  punishable  under  a 
0-ty  ordinance  prohibiting  disorderly  conduct.    Id. 


Jjkll  V.  State. 

(72  Miss.  507.) 

DwNQ  Declarations:    When  not  admissible, 

1.  Where  it  appears  the  wounds  inflicted  on  deceased  were  not  so  appar- 

ently serious  as  to  impress  on  him,  or  those  who  saw  him,  the  fact 
that  they  were  fatal,  and  that  he  hud  no  medical  attendance,  nor  any 
one  to  acquaint  him  with  the  nature  of  his  injury,  his  declarations 
wer-  held  to  be  inadmissible,  notwithstanding  his  wife  testified  tluit  he 
had  stated  that  he  was  about  to  die. 

2.  It  is  error  to  admit  alleged  dying  declarations  without  full  inquiry  into 

all  the  circumstances  under  which  they  were  made,  and  an  examina- 
tion of  all  witnesses  able  to  throw  light  on  the  matter. 

Appeal  from  the  Circuit  Court,  Perry  County;  Hon.  S.  II. 
Terral,  Judge. 
E.  J.  Bell,  convicted  of  murder,  appeals.    Reversed. 


BELL  V.  STATE. 


277 


3r.  U.  MouDfjor  and  Sonthworth  ds  Stevens,  for  appellant. 
Frank  Joknuoii^  Attornoy-General,  for  the  State. 

CooPKR,  0.  J.  The  circumstances  of  the  homicide  were  not 
such  as  to  make  competent  evidence  of  the  character  of  the 
ileceased  for  peace  or  violence.  Tliat  he  was  of  good  or 
ovil  repute,  or  irascible,  quarrelsome,  or  given  to  broils,  would 
throw  no  light  upon  the  character  of  the  homicide.  ;n  view  of 
the  ovidonco.    Spivei/  v.  State,  58  Miss.  8.58. 

The  testimony  of  the  wife  of  the  deceased,  in  which  is  de- 
taile)  liis  supposed  dying  declaration,  was  improperly  ad- 
mitted. Repeated  examinations  of  the  record  deepens  our 
conviction  that  the  court  should  have  required  a  full  and 
careful  disclosure  of  the  circumstancos  under  which  the  decla- 
rations wore  made,  and  ot  the  facts  going  to  show  that  the 
declarations  were  made  by  the  deceased  under  that  solemn  and 
sottled  conviction  of  impending  death  which  is  alone  recog- 
nized by  law  as  the  equivalent  of  the  oath  of  the  person  by 
whom  they  are  made.  The  question  of  the  admissibility  of 
dying  declarations  is  to  be  decided  by  the  court,  and,  when 
otfered  in  evidence,  it  is  "the  duty  of  the  court  to  fully  inves- 
ti'nite  the  circumstances  under  which  they  were  made,  with 
the  view  of  ascertaining  whether  they  are  admissible  in  evi- 
dence as  such,  under  the  rules  of  law  with  respect  to  that  sort 
of  evidence."     Oioem  v.  State,  59  Miss.  547. 

Mr.  (Treenloaf  states  the  principles  under  which  this  char- 
acter of  evidence  is  controlled  as  follows :  "  It  is  essential  to 
the  admissibility  of  these  declarations,  and  is  a  preliminary 
fact,  to  be  proved  b}'^  the  party  offering  them  in  evidence,  that 
they  were  made  under  a  sense  of  impending  death;  but  it  is 
not  necessary  that  they  should  be  stated,  at  the  time,  to  be  so 
made.  It  is  enough  if  it  satisfactorily  appears  in  any  mode 
that  they  were  made  under  that  sanction,  whether  it  be  di- 
rectly proved  by  the  express  language  of  the  declarant,  or  be 
inferred  from  his  evident  danger,  or  the  opinion  of  his 
medical  or  other  attendants,  stated  to  him,  or  from  his 
conduct,  or  other  circumstances  of  the  case,  all  of  which  are 
to  be  resorted  to  in  order  to  ascertain  the  state  of  the  de- 
clarant's mind.  The  length  of  time  Avhich  elapsed  between  the 
declaration  and  the  death  of  the  declarant  furnishes  no  rule 
for  the  admission  or  rejection  of  the  evidence,  though,  in  the 


C\ 


h,| 


273 


AMERICAN  CRIMINAL  REPORTS. 


absence  of  better  testimony,  it  may  serve  as  one  of  the  exjio- 
nents  of  the  deceased's  belief  that  his  dissohition  was  or  was 
not  impending.  It  is  the  impression  of  ahnost  immediate  dis- 
solution, and  not  the  rapid  succession  of  death,  in  point  of 
fact,  that  renders  the  tertimony  admissible.  Therefore,  when 
it  appears  that  the  deceased  at  the  time  of  the  declaration  had 
any  expectation  or  hope  of  recovery,  however  slight  it  may 
have  been,  and  though  death  actually  ensued  in  an  hour  after- 
ward, the  declaration  is  inadmissible.  On  the  other  hand,  a 
belief  that  he  will  not  recover  is  not  in  itself  sufficient,  unless 
there  be  also  the  prospect  of  almost  immediate  dissolution." 
1  Greenl.  Ev.  §  158.  We  have  no  doubt  that  the  wounds  in- 
flicted by  the  appellant  on  the  head  of  the  deceased  with  the 
ax  caused  his  death.  But  this  is  not  the  question  involved. 
The  true  inquiry  is  whether  the  deceased,  at  the  time  he  made 
the  declaration,  believed  that  these  injuries  would  certainly 
result  in  his  speedy  death.  It  appears  from  the  testimony  of 
Mr.  McSwain,  at  whose  house  the  homicide  occurred,  that  the 
deceased  was  struck  thrice  on  the  head,  "  one  wound  back  of 
the  head,  the  scar  of  which  was  almost  one  inch  wide,  and 
three  inches  long,"  which  looked  as  though  "  it  might  have 
been  made  with  the  poll  of  the  ax.  There  was  a  scar  in  the 
top  of  the  head,  as  if  made  with  the  eye  of  the  ax,  and  a  chop 
in  front,  on  the  forehead,  as  if  made  with  the  blade  of  the  ax." 
The  witness  Henlon,  who  saw  the  deceased  after  his  death, 
gave  substantially  the  same  description  of  the  wounds,  except 
the  one  on  the  forehead,  which  he  says  "cut  through  the  skull, 
and  I  could  see  something  like  the  brain  in  there."  No  other 
witness  thus  describes  the  wound  on  the  forehead,  and,  in  view 
of  all  the  evidence,  we  do  not  think  the  court  would  have  been 
warranted  in  finding  as  a  fact  that  such  was  the  character  of 
that  wound,  known  to  the  deceased.  It  is  not  suggested  in 
the  evidence  of  those  who,  immediately  after  the  injury,  saw 
the  deceased,  that  the  blows  deprived  him,  even  temporarily, 
of  consciousness.  He  remained  at  the  house  of  Mr.  McSwain 
that  night,  and  said  nothing  to  him  indicating  that  he  believed 
the  wounds  would  result  in  death.  McSwain  says :  "  He  did 
not  say  anything  about  dying,  that  I  heard.  He  asked  me  if  I 
would  sell  him  some  meat  for  his  family,  and  risk  his  getting 
well,  to  pay  me  for  it;  and  I  would  not  do  it."  Perkins,  an- 
other witness  for  the  State,  testified  that  he  was  with  the  de- 


UUMMiJ 


BELL  V.  STATE. 


279 


ceased  during  the  night,  and  heard  him  say  nothing  of  dying, 
except  that  "  Bell  had  almost  killed  him."  This  witness  also 
testified  that  he  "  went  hoiae  with  deceased  the  next  day, 
and  stayed  with  him  most  of  the  time.  Never  heard  him  say 
anything  about  dying,  that  I  now  remember." 

It  does  not  appear  that  deceased  had  any  medical  attention; 
that  his  wounds  were  examined  by  any  one,  and  their  gravity 
explained  to  him;  that  anything  was  said  to  him  by  any  one 
calculated  to  impress  him  with  the  conviction  that  his  condi- 
tion was  serious,  much  less  a  hopeless  one.  His  declarations 
were  proved  by  the  testimony  of  his  wife,  who,  oifer  the  objec- 
tion of  the  defendant,  was  permitted  to  testify.  She  said :  "  I 
saw  John  when  they  brought  him  home  the  next  day  (Thurs- 
dav)  after  he  was  hurt.  He  told  me  when  they  brought  him 
home  tliat  he  was  bound  to  die,  and  he  knew  it,  for  he  said  :  '  I 
can't  live  but  a  few  days.  1  know  Ed  Bell  has  killed  ,me. 
Will  die  in  a  few  days.'  He  told  me  that  when  he  first  got 
home  and  lay  down  on  a  pallet.  He  told  me  what  to  do,  and 
said :  '  I  know  I  will  die  in  a  very  few  days,  for  I  can't  live 
this  way.  Ed  Bell  has  killed  me.  I  know  it.' "  The  bill 
of  exceptions  continues :  "  Here  the  district  attorney  asked 
the  witness  whether  John  Powe  made  any  statements  to  her 
aljout  the  difficulty,  before  he  died,  and,  if  so,  to  state 
what  they  were."  The  defendant  objected  to  the  intro- 
duction of  the  statements,  for  the  reason  that  no  facts 
had  been  shown  to  make  the  declaration  competent.  The 
objection  was  overruled,  and  the  witness,  testifying,  said : 
"John  Powe,  after  telling  me  he  was  bound  to  die,  said 
that  he  and  Bell  started  to  get  some  stove  wood,  and  he 
had  the  light  and  Bell  the  ax;  and  Bell  told  him  to  pick  up 
some  stove  wood,  and  take  it  in  the  house,  and  he  said  to  Bell, 
'  No,  let  us  wait,  and  take  the  wood  in  the  house  in  the  morn- 
ing;' and  Bell  said,  '  No,  let  us  take  it  in  to-night;'  and  John 
said  he  stooped  down  to  get  the  wood,  and  Bell  struck  him 
with  the  ax,  and  he  never  knew  anything  more  for  some  time, 
when  he  was  somewhere  else.  There  were  several  persons 
present,  I  think,  when  John  made  this  statement.  They 
brought  him  home  in  an  ox  ragon.  He  began  telling  me 
about  going  to  die  while  in  a  chair,  waiting  for  the  pallet  to 
be  made,  and  finished  about  how  it  was  after  he  lay  down.  We 
bad  to  hold  him  up  in  a  chair  and  lay  him  down.    Some  of  the 


'n 


n 


280 


AMERICAN  CRIMINAL  REPORTS. 


parties  who  were  present  live  in  Green  county,  and  some  live 
in  Alabama.  John  did  not  tell  us  to  buy  meat  from  Mr.  ilc- 
Swain  on  credit,  and  tell  him  ho  would  pay  for  it  Avlien  ho  jfot 
well,  for  he  said  he  was  going  to  die  all  the  time.  Will  I'er- 
kins  was  there  when  John  was  telling  me,  and  I  reckon  ho 
heard  him." 

The  gravity  of  the  issues  involved  in  that  class  of  cases,  in 
which  alone  this  character  of  hearsay  evidence  is  admissible, 
the  fact  that  the  defendant  is  deprived  of  the  oi)portunity  of 
cross-examination,  that  the  declaration  is  usually  tliat  of 
a  hostile  party,  and  is  very  generall}'  proved  b}'  the  testimony 
of  his  friends  or  relatives,  has  justly  caused  the  courts  to  re- 
strict its  admissibility  within  well-defined  limits,  and  to  require 
clear  proof  of  those  conditions,  the  existence  of  which  are  essen- 
tial to  its  competency.  The  sincere  and  settled  belief  of  im- 
pending dissolution,  the  absence  of  all  hope,  however  sliglit, 
can  alone  give  to  the  declaration  tliat  sanction  which  is  atti-ib- 
uted  to  the  testimony  of  the  living  by  the  solemn  oath,  judi- 
ciously administered.  The  means  by  which  this  essential  fact 
shall  be  established  are  not  so  important  as  the  clearness  of 
the  proof,  whatever  may  be  the  evidence  by  whicl;  the  proof  is 
made.  It  is  not  necessary  that  the  declarant  shall  aver  that 
he  believes  death  to  be  certain  and  im[)ending.  l\<tpl(>  v. 
iSlmj>son,  48  Mich.  474;  Ward  v.  /State,  78  Ala.  441;  1  (iroenl. 
Ev.  158;  Com.  v.  Jfatt/iewn,  80  Ky.  287;  Doundlij  v.  i>tafi\  2G 
X.  J.  Law,  4G3;  Tij)  v.  State,  14  Lea,  502.  On  the  other  hand, 
the  mere  fact  that  the  declarant  stated  that  he  would  die  does 
not  necessarily  establish  that  ho  was  without  hope,  and  ex- 
pected a  speedy  dissolution.  Much  depends  upon  the  circum- 
stances of  such  statements.  Exclamations  of  despondency  or 
from  pain,  though  they  may  be  in  language  which,  under  other 
circumstances,  Avould  be  appropriate  to  express  settled  de- 
spair and  hopelessness,  may,  and  often  do,  indicate  far  less. 
To  give  to  words,  which  the  observation  of  mankind  teaches 
are  frequently  used  in  a  different  sense,  an  inflexible  signifi- 
cance, even  though  it  be  a  natural  one,  Avould  be  to  do  viohuico 
to  the  plain  dictates  of  common  sense,  and  would  often  result 
in  serious  injustice. 

Words  are  but  the  exponents  of  thought,  and  the  effort  must 
be  to  determine  whether,  in  the  particular  instance,  the 
thought  suggested  by  their  use  was  that  of  the  speaker.    The 


1 

i  1 

II 

jl 

i! 

1 

'! 

1 

BELL  V.  STATE. 


2S1 


deceased  here  had  received  wounds  from  which  he  doubtless 
died,  but  their  immediate  effect  ticeins  not  to  have  been 
sutticientl}'  serious  to  impress  upon  him  or  those  who  saw  him 
the  fact  that  they  were  of  •  a  fatal  cliaracter.  Before  leaving 
the  house  of  Mr.  McSwain,  he  asked  him  to  sell  on  credit  food 
for  his  family,  and  "  risk  his  getting  well  to  pay  for  it."  He 
said  nothing  to  the  State's  witness  Perkins  during  the  night  of 
the  injury,  nor  the  next  day,  while  being  carried  home,  indicat- 
ino"  the  slightest  ap[)rehension  of  death.  AVhen  carried  into 
his  house  and  placed  on  a  chair,  and  at  that  time  meeting  for 
the  first  time  his  wife,  in  what  seems  to  have  been  an  ebulli- 
tion of  despondency,  he  used  language  describing  his  condition, 
which,  under  other  circumstances,  might  have  indicated  an 
utter  absence  of  all  hope  of  recovery,  and  a  fixed  apprehension 
of  immediate  death.  But  the  question  returns  whether  this 
language,  under  the  circumstances,  so  certainly  indicates  that 
mental  condition  requisite  to  make  what  he  then  said  a  dying 
declaration  as  to  justify  its  Introduction  in  evidence  against 
one  being  tried  for  his  life,  without  at  least  further  and  more 
extended  examination  of  other  witnesses  then  present.  Per- 
kins, who  was  present  at  the  time,  either  did  not  hear  what 
was  said,  or  the  manner  of  the  declarant  did  not  impress  him 
as  being  that  of  a  man  dying,  or  who  believed  himself  destined 
to  an  early  death.  Is^ot  only  is  this  true,  but  throughout  the 
following  days  during  which  he  remained  with  him,  this  wit- 
ness heard  from  the  deceased  no  expression  indicating  an  ap- 
prehension of  death.  Others  were  present  at  the  time  and 
afterward,  but  no  one  of  them  was  called  upon  to  testi  ""y  either 
to  the  declarations  or  to  facts  ten  ling  to  show  the  physical 
or  mental  condition  of  the  deceased.  Admitting  the  truth  of 
all  that  the  wife  stated,  it  was  at  least  left  in  doubt  whether 
the  statement  of  the  deceased  that  he  would  die  from  his 
wounds  ex})ressed  and  clearly  proved  a  hopeless  and  fixed  con- 
dition of  mind,  or  but  showed  a  momentary  despondency 
springing  from  the  pain  of  meeting  his  family.  We  think  it 
clear  that  the  court  should  at  least  have  required  a  full  devel- 
opment of  all  the  circumstances,  and  from  other  witnesses, 
if  necessary,  and  from  such  investigation  should  have  deter- 
mined the  existence  of  that  settled  feeling  of  hopelessness  on 
the  part  of  the  declarant  before  admitting  his  statement  as 
a  dying  declaratioii,     Infavorem  vitae  all  doubt  should  be  re- 


s'> 


^.V  f,         *!" 
'  1    »',1 


I" 


>•    ■i 


282 


AMERICAN  CRIMINAL  REPORTS. 


solved  against  the  State  and  in  favor  of  the  accused.   Judgment 
reversed. 


Note. — Adraisaihle  when  cause  of  death  uncertain. — Where  the  evidence 
is  conflicting  as  to  whether  deceased  was  killed  by  a  blow  in  the  stomach 
infli(;ted  by  defendant  with  an  axe,  or  whether  defendant  struck  him  only 
on  the  arm,  and  he  died  from  other  causes,  dying  declarations  by  deceased 
that  defendant  killed  him  bj'  a  blow  in  the  stomach  with  an  axe  are  admis- 
sible.   Clark  V.  State,  105  Ala.  91. 

Made  under  sense  of  impending  death.  — ^The  evidence  showed  that  deceased 
told  the  doctor  "  that  the  rim  of  his  stomach  was  broken,  and  that  he 
would  not  get  over  it; "  that  the  doctor  told  him  he  was  very  near  death; 
and  that  an  hour  afterwards  he  died :  Held,  that  declarations  made  by  the 
deceased  after  this  convei'sation  were  made  under  the  sense  of  impending 
death.    Id. 

/Same.— Where  a  witness  testified  that  deceased  told  him  that  hn  expected 
to  die,  and  that  he  could  not  get  well,  testimony  that  deceased  immediately 
thereafter  told  witness  that  defendant  shot  him,  is  admissible  as  a  dying 
declaration.     Cole  v.  State,  105  Ala.  76. 

Saine. — Statements  of  deceased  are  inadmissible  as  dying  declarations  on 
a  mere  showing  that  at  the  time  he  "  appeared  to  be  suffering,  and  was 
praying."    Id. 

Sajne.—Where  deceased,  after  he  had  been  shot,  was  informed  that  there 
was  no  chance  for  his  recovery,  and  in  resjionse  thereto  exclaimed,  "  Oh, 
my  God.  must  I  die  1 "  and  said,  "  Give  me  some  water,  if  I  have  got  to 
die,"  his  belief  that  he  was  about  to  die  was  sufficiently  established  to  admit 
his  statements  as  to  the  cause  of  the  shooting  as  <lying  declarations.  Com. 
V.  Breteer,  164  Mass.  577. 

Jury  viay  pass  upon  question. — Though  the  judge  admitted  certain  state- 
ments as  dying  declarations,  it  was  proper  to  instruct  the  jury  that  they 
should  reject  said  statements  if  they  found  that  deceased  had  any  hope  of 
recovery  at  the  time  they  were  made.    Id, 

Statements  of  the  deceased  as  to  matters  other  than  the  circumstances 
surrounding  the  homicide,  or  expressions  of  belief  as  to  matters  not  within 
the  knowledge  of  the  dying  man,  are  inadmissible.  Whart.  '"'-.  Ev.  g  294; 
State  V.  Footyou,  24  Or.  61,  32  Pac.  1031,  and  33  Pac.  537;  State  v.  Cham- 
bers, 87  Mo.  406;  Matherly  v.  Com.  (Ky.),  19  S.  W.  977;  1  Greenl.  Ev.  §  159. 
The  rule,  as  stated  by  Greenleaf,  is,  "The  declarations  of  the  deceased  are 
admissible  only  of  those  things  to  which  he  would  have  been  competent  to 
testify  if  sworn  in  the  cause."    State  v.  Gray,  55  Kan.  135. 

Attendant  circumstances  may  be  shown. — As  showing  the  circumstances 
under  which  dying  declarations  were  made,  the  prosecution  may  prove  that 
a  Catholic  priest  had  been  summoned  for  the  declarant,  and  had  performed 
in  her  behalf  the  last  rites  of  the  church.  Chicago  Law  Journal  (weekly), 
Vol.  2,  p.  96. 

Conversation— Allounng  only  part  put  in  evidence,  error.— Refusal  to 
allow  the  defendant  to  prove  what  was  said  by  him  in  a  conversation  with 
the  deceased,  which  had  already  been  put  in  evidence  by  the  prosecution, 
is  error.    Id. 

Impeachnunt—  Contradictory   statements    odmissift/e.  —  Contradictory 


MOORE  V.  UNITED  STATES. 


283 


Btate'ments  by  the  deceased  at  the  time  of  making  a  dying  declaration  are  ad- 
missible as  tending  to  impeach  the  declaration,  whether  competent  as  dying 
declarations  or  not.  The  rule  that,  to  impeach  a  witness  by  proof  of  con- 
tradictory statements,  a  foundation  must  be  laid  by  asking  him  whether 
he  made  such  statements,  does  not  extend  to  the  case  of  dying  declara- 
tions.   Id. 


MooBE  V.  United  States. 


(160  U.  S.  268.) 

Embezzlement:    Meaning  of  term — Indictment — Allegation  of  capacity  of 
accused  when  money  was  received  by  him. 

1,  A  count  in  an  indictment  which  charges  that  the  accused,  "  being  then 

and  there  an  assistant,  clerk,  or  employe  in  or  connected  with  the  busi- 
ness or  operations  of  the  United  States  postoffice  in  the  city  of  Mobile, 
in  the  State  of  Alabama,  did  embezzle  the  sum  of  sixteen  hundred  and 
fifty-two  and  fifty-nine  otie  hundredths  dollars,  money  of  the  United 
States,  of  the  value  of  sixteen  hundred  and  fifty-two  and  fifty -nine  one 
hundredths  dollars,  the  said  money  being  the  personal  property  of  the 
United  States,"  is  defective  in  that  it  does  not  further  allege  that  such 
sum  came  into  his  possession  in  that  capacity. 

2.  The  count  having  been  demurred  to,   and  the  demurrer  having  been 

overruled,  the  objection  to  it  is  not  covered  by  Rev.  Stat,,  §  1025,  and 
is  not  cured  by  verdict. 
8.  Embezzlement  is  the  fraudulent  appropriation  of  property  by  a  person 
to  whom  it  has  been  intrusted,  or  into  whose  hands  it  has  lawfully 
come;  and  it  differs  from  larceny  in  the  fact  that  the  original  taking 
of  the  property  was  lawful,  or  with  the  consent  of  the  owner,  while,  in 
larceny,  the  felonious  intent  must  have  existed  at  the  time  of  the 
taking. 


Error  to  the  District  Court 
Soutiiern  District  of  Alabama. 


of  the  United  States  for  the 


i 


Plaintiff  in  error,  late  assistant  postmaster  of  the  city  of 
Mobile,  was  indicted  and  convicted  of  embezzling  certain 
moneys  of  the  United  States  to  the  amount  of  $1,652.59. 

There  were  four  counts  in  the  indictment,  to  one  of  which 
a  demurrer  was  sustained,  and  upon  two  others  defendant  was 
acquitted.  The  fourth  count,  upon  which  he  was  convicted, 
charged  that  "  the  said  George  S.  Mooro,  being  then  and 
there  an  assistant,  clerk,  or  employe  in  or  connected  with  the 


i      i 


H 


1     h 


\^i 


2S4 


AMERTCAN  CRIMINAL  REPORTS. 


business  or  operations  of  tlie  United  States  postoflRce  in  tlio 
city  of  Mobile,  in  the  State  of  Alubanui,  did  enibez/Jo  the 
sum  of  sixteen  hundred  and  fifty-two  and  fifty-nine  one  iiun- 
dredths  dollars  ($1,652.59),  money  of  the  United  States  of  the 
value  of  sixteen  hundred  and  fifty-two  and  fifty-nine  one  hun- 
dredths dollars  ($1,(552.5!)),  the  said  money  beintj  the  personal 
property  of  the  United  States." 

Moore  having  been  sentenced  to  imprisonment  at  hard  labor 
sued  out  this  writ  of  error. 

3L'.  M.  D.  WlcJcersham  and  3Ir.  W.  TI.  Jfclniosh,  for  ])l!unt- 
iff  in  error. 

Mr.  Assintant  Attonieij-Genei'al  Whitney  for  defendant  in 
error. 


Mr.  Justice  Bkown,  after  stating  the  case,  delivered  the 
opinion  of  the  court. 

Defendant  was  indicted  under  the  first  section  of  the  act  of 
March  3,  1875,  "  to  punish  certain  larcenies,  and  the  receivers 
of  stolen  goods,"  18  Stat.  470,  which  enacts  that  "any  person 
who  shall  embezzle,  steal,  or  purloin  any  money,  ])r()]ierty, 
record,  voucher,  or  valuable  thing  wiiatever,  of  the  moneys 
goods,  chattels,  records,  or  property  of  the  United  States, 
shall  be  deeuied  guilty  of  felon}^"  etc. 

The  principal  assignment  of  error  is  to  the  action  of  the  court 
in  overruling  a  demurrer  to  the  fourth  count  Of  the  indict 
ment,  which  charges,  in  the  words  of  the  statute,  that  "  the 
said  George  S.  Moore,  being  then  and  there  an  assistant,  clerk 
or  employe,  in  or  connected  with  the  business  or  operations  of 
the  United  States  postoffice  in  the  city  of  Mobile,  in  the  State 

of  Alabama,  did  embezzle  ^  the  sum   of ,  money  of  the 

United  States,  of  the  value  of ,  the  said  money  being  the 

personal  property  of  the  United  States." 

Embezzlement  is  the  fraudulent  appropriation  of  property 
by  a  person  to  whom  such  property  has  been  intrusted,  or  into 
whose  hands  it  has  lawfully  come.  It  differs  from  larceny  in 
the  fact  that  the  original  taking  of  the  property  was  lawful,  or 
with  the  consent  of  the  owner,  while  in  larceny,  the  felonious 
intent  must  have  existed  at  the  time  of  the  takinar. 

It  is  objected  to  the  indictment  in  this  case  that  there  is  no 
direct  allegation  that  defendant  was  an  assistant,  clerk,  or  era- 


i 


MOORE  V.  UNITED  STATES. 


2S5 


ploye  in,  or  connected  with  the  business  or  operations  of  the 
postofflce  at  Mobile;  that  the  money  of  the  Cnitecl  States  is 
not  identitied  or  described,  and  that  there  is  no  allegation  that 
it  came  into  the  possession  of  the  defendant  by  virtue  of  his 
employment. 

The  act  in  question  has  never  been  interpreted  by  this  court, 
nor  has  our  attention  been  called  to  any  case  where  it  has  re- 
ceived a  construction  in  this  particular,  except  that  of  JfcCann 
V.  United  States,  2  Wyoming,  274,  decided  in  the  Territorial  Su- 
premo Court  of  Wyoming,  in  which  the  allegation  was  that 
"McCann,  *  *  *  at  and  within  the  district  aforesaid,  twenty 
thousand  pounds  of  sugar  *  *  *  of  the  goods,  chattels,  and 
property  of  the  United  States  of  America,  then  and  there  being 
found,  then  and  there  feloniously  and  fraudulently  did  embezzle, 
steal,  and  purloin,"  etc.  This  allegation  was  held  to  be  defect- 
ive in  charging  a  mere  legal  conclusion, "  leaving  it  impossible 
todeterraine  whether  the  offense  was  committed,  and  the  conclu- 
sion correct."  It  was  said  that  the  indictment  for  this  offense 
must  set  forth  the  actual  fiduciary  relation  and  its  breach; 
that  the  indictment  did  not  identify  the  offense  on  the  record; 
and  did  not  secure  the  accused  in  his  right  to  plead  a  former 
acquittal  or  conviction  to  a  second  prosecution  for  the  offense. 
It  was  held  that  the  words  "  to  embezzle,"  were  equivalent  to 
the  words  "  to  commit  embezzlement,"  and  that  a  count  in  the 
words  of  the  statute  was  not  sufficient;  that  "  all  the  ingre- 
dients of  fact  that  are  elemental  to  the  definition,  must  be  al- 
leged, so  as  to  bring  the  defendant  precisely  and  clearly  within 
the  scatute;  if  that  can  be  done  by  simply  following  the  words 
of  the  statute,  that  will  do;  if  not,  other  allegations  must  be 
used."  The  general  principle  here  alluded  to,  has  been  applied 
by  this  court  in  several  cases.  United  States  v.  Cadi,  105  U. 
S.  611;  United  States  v.  Cook,  17  Wall.  168;  United  States  v. 
Cruichshank,  92  U.  S.  542. 

In  the  case  of  United  States  v.  NortJmay,  120  U.  S.  327,  the 
word  "embezzle"  was  recognized  as  having  a  settled  technical 
meaning  of  its  own,  like  the  words  "  steal,  take,  and  carry 
away,"  as  used  to  define  the  offense  of  larceny.  In  this  case 
the  allegation  was  that  the  defendant,  "  as  such  president  and 
agent"  (of  a  national  bank)  "  then  and  there  had  and  received 
in  and  into  his  possession  certain  of  moneys  and  funds  of  said 
banking  association,    *    *    *    and  then  and  there  being  in. 


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286 


AMERICAN  CRIMINAL  REPORTS. 


possession  of  the  said"  defendant  "as  such  president  and 
agent  aforesaid,  he,  the  said "  defendant,  "  then  and  there' 

*  *  *  wrongly,  unlawfully,  and  with  intent  to  injure  and  de- 
fraud said  banking  association,  did  embezzle  and  convert  to  his 

*  *  *  own  use."  In  respect  to  this  it  was  said  to  be  quite 
clear  that  the  allegation  was  sufficient,  as  it  distinctly  alleged 
that  the  moneys  and  funds  charged  to  have  been  embezzled 
were  at  the  time  in  the  possession  of  the  defendant  as  presi- 
dent and  agent.  "  This  necessarily  means,"  said  the  court, 
"that  they  had  come  into  his  possession  in  his  official  char- 
acter, so  that  he  held  them  in  trust  for  the  use  and  benefit  of 
the  association.  In  respect  to  those  funds,  the  charge  against 
him  is  that  he  embezzled  them  by  converting  them  to  his  own 
use.  This  we  think  fully  and  accurately  describes  the  offense 
of  embezzlement  under  the  act  by  an  officer  and  agent  of  the 
association." 

In  the  case  of  Claassen  v.  U.  S.,  142  U.  S.  140,  an  allegation 
similar  in  substance  and  effect  was  also  held  to  be  sufficient. 
The  indictment,  said  the  court,  "  avers  that  the  defendant  was 
president  of  a  National  Banking  Association;  that  by  virtue 
of  his  office  he  received  and  took  into  his  possession  certain 
bonds,  (fully  described,)  the  property  of  the  association;  and 
that,  with  intent  to  injure  and  defraud  the  association,  he 
embezzled  the  bonds  and  converted  them  to  his  own  use.  On 
principle  and  precedent,  no  further  averment  was  requisite  to 
a  complete  and  sufficient  description  of  the  crime  charged." 

The  cases  reported  from  the  English  courts,  and  from  the 
courts  of  the  several  States,  have  usually  arisen  under  stat- 
utes limiting  the  offense  to  certain  officers,  clerks,  agents, 
or  servants  of  individuals  or  corporations,  and  the  rulings 
that  the  agency  or  fiduciary  relation  must  be  averred,  as 
well  as  the  fact  that  the  money  embezzled  had  come 
into  the  possession  of  the  prisoner  in  that  capacity,  are  not 
wholly  applicable  to  a  statute  which  extends  to  every  person, 
regardless  of  his  emploj'^ment,  or  of  the  fact  that  the  money 
had  come  into  his  possession  by  virtue  of  any  office  or  fiduci- 
ary relation  he  happened  to  occupy.  These  cases  undoubt- 
edly hold,  with  great  uniformity,  that  the  relationship  must 
be  averred  in  the  exact  terms  of  the  statute;  that  the  property 
embezzled  must  be  identified  with  great  particularity;  and 
that  it  must  also  be  averred  to  have  come  into  the  possession 


MOORE  V.  UNITED  STATES. 


287 


of  the  prisoner  by  virtue  of  his  fiduciary  relation  to  the  owner 
of  the  property. 

Thus  in  Commonwenlth  v.  Smart,  6  Gray,  15,  it  was  held 
that  an  indictment  which  averred  that  the  defendant  "  was 
intrusted "  by  the  owner  "•  with  certain  property,  the  same 
being  the  subject  of  larceny,"  (describing  it,) "  and  to  deliver 
the  same  to  "  the  owner  "  on  demand,"  and  afterward  "  re- 
fused to  deliver  said  property  to  said  "  owner,  "  and  feloniously 
did  embezzle  and  fraudulently  convert  to  his  own  use,  the 
same  then  and  there  being  demanded  of  him  by  said  "  owner, 
•was  fatally  defective,  by  reason  of  omitting  to  state  the  pur- 
pose for  which  the  defendant  was  intrusted  with  the  property, 
or  what  property  he  fraudulently  converted  to  his  own  use. 
So  in  People  v.  Allen,  5  Denio,  70,  under  a  statute  limiting  the 
ofifense  to  clerks  and  servants,  it  was  held  that  a  count  charg- 
ing the  defendant  with  having  collected  and  received  certain 
money  as  the  agent  of  an  individual,  was  defective. 

On  the  other  hand,  in  Lowenthal  v.  State,  32  Alabama,  589, 
an  indictment  charging  in  the  form  prescribed  by  the  code 
that  the  defendant,  being  agent  or  clerk  of  another,  "  embez- 
zled, or  fraudulently  converted  to  his  own  use,  money  to  about 
the  amount  of  eighteen  hundred  dollars  ($1800)  *  *  * 
which  came  into  his  possession  by  virtue  of  his  employment," 
was  sufficient.  See,  also,  People  v.  Tomlinson,  66  California, 
344;  Commonwealth  v.  Ilussey,  HI  Mass.  432.  It  was  held, 
however,  in  State  v.  Stimson,  4  Zabr.  (24  N.  J.  Law)  9,  that  it 
was  not  sufficient  to  describe  the  offense  in  the  words  of  the 
statute,  and  that  there  should  be  some  description  either  of 
the  number  or  denomination  of  the  coins  and  of  the  notes, 
and  also  an  averment  of  the  value  of  notes. 

Indeed,  the  rulings  in  this  class  of  cases  became  in  some 
instances  so  strict,  that  statutes  were  passed  in  several  of  the 
States  defining  what  should  be  necessary  and  sufficient  in  in- 
dictments for  embezzlement.  Thus,  in  the  Criminal  Code  of 
Illinois,  it  is  declared  to  be  sufficient  to  allege,  generally,  in 
the  indictment,  an  embezzlement,  fraudulent  conversion  or 
taking,  with  intent  to  embezzle  and  convert  funds  of  any  per- 
son, bank,  corporation,  company,  or  copartnership,  to  a  cer- 
tain value  or  amount,  without  specifying  any  particulars  of 
such  embezzlement.  Under  this  statute,  it  was  held  proper  for 
the  court  to  permit  all  the  evidence  of  what  the  defendant  did 


288 


AMERICAN  CRIMINAL  REPORTa 


by  reason  of  his  confidential  relations  with  the  banking  Hrni 
whoso  clerk  he  was,  to  go  to  the  jury,  and  if  the  jury  found, 
from  the  whole  ev'idonce,  any  funds  or  credits  for  monov  luul 
been  embezzled  or  fraudulently  converted  to  his  own  use  by 
defendant,  it  was  sulHcient  to  maintain  the  charge  of  embez- 
zlement. "  The  view  taken  by  the  defense,"  said  the  court, 
"of  this  statute,  is  too  narrow  and  technical  to  be  a(loj)twl. 
It  has  a  brooder  meaning,  and  when  correctly  read,  it  will  em- 
brace all  wrongful  conduct  by  confidential  clerks,  agents,  or 
servants,  and  leave  no  opportunity  for  escape  from  just  ]uin- 
ishment  on  mere  technical  objections  not  affecting  the  guilt  or 
innocence  of  the  party  accused."  Jietr  v.  J'co/fle,  110  Illinois, 
627,  047. 

The  ordinary  form  of  an  indictment  for  larceny  is  th.at  .1. 
S.,  late  of,  etc.,  at  etc.,  in  the  county  aforesaid,  (specifying  the 
property,)  of  the  goods  and  chattels  of  one  J.  'N.,  "  feloniously, 
did  steal,  take,  and  carry  away."  In  other  words,  the  whole 
gist  of  the  indictment  lies  in  the  allegation  that  the  defendant 
stole,  took,  and  carried  away  specified  goods  belonging  to  tlie 
person  named.  The  indictment  under  consideration  is  fc  undctl 
upon  a  statute  to  pnnish  larcenies  of  government  property. 
It  api>lies  to  "  an^y  person,"  and  uses  the  words  "  embezzle, 
steal,  or  purloin  "  in  the  same  connection,  and  as  api)licable  to 
the  same  persons  and  to  the  same  property.  There  can  be  no 
doubt  that  a  count  charging  the  prisoner  with  stealing  or  pur- 
loining certain  described  goods,  the  property  of  the  United 
States,  would  be  sufficient,  without  further  specification  of 
the  offense;  but  whether  an  indictment  charging  in  such  gen- 
eral terms  that  the  prisoner  "  embezzled  "  the  property  of  the 
government,  (identifying  it,)  would  be  sufficient,  we  do  not 
undertake  to  determine;  although  we  think  the  rules  of  good 
pleading  would  suggest,  even  if  they  did  not  absolutely  require, 
that  the  indictment  should  set  forth  the  manner  or  capacity  in 
which  the  defendant  became  possessed  of  the  property. 

For  another  reason,  however,  we  think  the  indictment  in 
this  case  is  insufficient.  If  the  words  charging  the  defendant 
with  being  an  employe  of  the  postoffice  be  material,  then  it 
is  clear,  under  the  cases  above  cited,  that  it  should  be  averi-ed 
that  tiie  money  embezzled  came  into  his  possession  by  virtue  of 
such  employment.  Unless  this  be  so,  the  allegation  of  em- 
ployment is  meaningless  and  might  even  be  misleading,  since 


MOORE  V.  UNITED  STATES. 


2S0 


the  defendant  might  be  held  for  property  loceived  in  a  wholly 
different  capacity — such,  for  instance,  as  a  siu.ple  bailee  of  the 
government.  In  the  absence  of  a  statutory  regulation  the 
authorities  upon  this  subject  are  practically  uniform.  Whar- 
ton's Crim.  Law,  §  1942;  Hex  v.  Snowley,  4  Car.  &  P.  390; 
Commonwealth  v.  Shnpson,  9  Met.  138;  Peo^jle  v.  Sherman,  10 
"Wend.  298;  Hex  v.  Prince,  2  Car.  &  P.  517;  Rex  v.  Thorley, 
1  MwkI.  C.  C.  3i3;  Rex  v.  Blakewell,  Russ.  &  Ry.  35. 

On  the  other  hand,  if  these  words  be  rejected  as  surplusage 
and  mere  dcscrlptio  personae,  then  the  property  embezzled 
should  be  identified  with  particularity,  the  general  rule  in  the 
absence  of  a  statute  being  that  an  averment  of  the  embezzle- 
ment of  a  certain  amount  in  dollars  and  cents  is  insufficient. 
Rex  V.  Furtieanx,  Russ.  &  Ry.  335;  Rex  v.  l^lower,  5  B.  and 
C.  730;  Commomoealth  v.  Sawtelle,  11  Cush.  142;  People  v. 
Bogart,  36  California,  245;  People  v.  Cox,  40  California,  275; 
Barton  v.  State,  29  Arkansas,  68;  State  v.  Thompson,  42 
Arkansas,  517;  State  v.  Ward,  48  Arkansas,  36. 

There  are,  undoubtedly,  cases  which  hold  that,  where  the 
crime  consists,  not  in  the  embezzlement  of  a  single  definite 
quantity  of  coin  or  bills,  but  in  a  failure  to  account  for  a  num- 
ber of  small  sums  received — a  series  of  petty  and  continuous 
peculations — where  it  would  be  manifestly  imjiossible,  proba- 
b'y  for  the  defendant  himself,  but  much  more  for  the  prosecu- 
tion, to  tell  of  what  the  money  embezzled  consisted,  an 
allegation  of  a  particular  amount  is  sufficient.  These  cases, 
however,  are  confined  to  public  officers,  or  to  the  officers  of  cor- 
porations, and  where  the  embezzlement  consists  of  a  single 
amount  of  property,  the  general  rule  above  stated  still  holds 
good.  The  leading  case  upon  this  point  is  that  of  People  v. 
McKinney,  10  Michigan,  54,  89.  In  this  case  the  treasurer  of 
the  Stute  of  Michigan  was  charged  with  the  embezzlement  of 
four  thousand  dollars  belonging  to  the  State.  It  was  held  that, 
as  the  treasurer  had  by  law  the  entire  custody  and  management 
of  the  public  n  on  y,  with  authority  to  receive  such  descrip- 
tions of  funds  as  he  chose,  the  public  could  exercise  no  control 
or  constant  supervision  over  him,  and  that  it  would  be  wholly 
impracticable  to  trace  or  identify  the  particular  pieces  of 
money  or  bills  received  by  him,  and  hence,  that  the  allegation 
of  a  certain  amount  was  sufficient.  This  case  has  been  fol- 
lowed by  several  others,  and  may  be  said  to  apply  to  all 
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900 


AMERICAN  CRIMINAL  REPORTS. 


instances  whoro  it  would  be  impracticable  to  sot  forth  or  idcn- 
tify  the  particular  character  of  the  property  embezzled.  State 
V.  Munch,  22  Minnesota,  67;  State  v.  Ring,  20  Minnesota,  Tb; 
State  V.  Smith,  13  Kansas,  274,  294;  State  v.  Oat'/uck,  IG  Ne- 
vada,  120;  United  States  v.  Bornernnnn,  36  Fed.  ilep.  257.  In 
some  jurisdictions,  however,  notably  in  England,  California, 
Louisiana  and  Massachusetts,  the  ditHculty  has  been  entirely 
remedied  by  statute.  Greaves'  Criminal  Law,  156;  Hex  v. 
Orcroe,  1  Moody  Cr.  Cas.  447;  Commonwealth  v.  Hutteriek,  100 
Mass.  1;  Commomvmlth  v.  Bennett,  118  Mass.  443;  People  v. 
Trcadwell,  69  California,  226;  State  v.  Thompaon,  32  La.  Ann. 
796. 

If,  then,  the  indictment  in  this  case  had  charged  that  the  de- 
fendant, being  then  and  there  assistant,  clerk,  or  employe  in  or 
connected  with  the  business  or  operations  of  the  United  States 
postottice  in  the  city  of  Mobile,  embezzled  the  sum  stated,  and 
had  further  alleged  that  such  sum  came  into  his  possession  in 
that  capacity,  we  should  have  held  the  indictment  sulHcient, 
notwithstanding  the  general  description  of  the  property  em- 
bezzled as  consisting  of  so  many  dollars  and  cents.  But,  if  the 
words  charging  him  with  being  in  the  employ  of  the  govern- 
ment be  stricken  out,  then  there  would  be  nothing  left  to  show 
why  the  property  embezzled  could  not  be  identified  with  par- 
ticularity, and  the  general  rule  above  cited  would  apply.  The 
indictment  would  then  reduce  itself  to  a  simple  allegation  that 
the  said  George  S.  Moore,  at  a  certain  time  and  ])lace,did  em- 
bezzle the  sum  of  $1,652.59,  money  of  the  United  States,  of  the 
value,  etc.,  said  money  being  the  personal  pro})erty  of  the 
United  States,  which  generality  of  description  would  be  clearly 
bad.  As  there  was  a  demurrer  to  this  count,  which  was 
overruled,  we  do  not  think  the  objection  is  covered  by  Kev. 
Stat.,  §  1025,  or  cured  by  the  verdict. 

As  we  hold  the  indictment  in  this  case  to  be  bad,  we  find  it 
unnecessary  to  consider  the  other  errors  assigned.  The  judg- 
ment of  the  court  below  is  therefore  reversed,  and  the  case 
remanded,  with  directions  to  quash  the  indictment. 

Note.— Oumersfttp  must  he  alleged.— In  a  prosecution  for  embezzlement 
under  the  statute  of  North  Dakota,  it  is  necessary  to  allege  the  ownership 
of  the  property  embezzled,  and  prove  *he  same  aa  alleged.  State  v.  CoUitis, 
4  N.  D.  433. 

In  this  case  the  court  says:    'Tt  is  elementary  that  in  all  prosecations 


MOOIIE  V.  UNITED  STATES. 


291 


for  larcpoy  tho  property  Btolen  must  be  Bpeclflcally  set  forth,  nnd  niso  t)io 
ownership  of  such  piopt^rty;  and  the«o  ulU'Rationn  hoing  nuct'HHiiry,  both  in 
indicttnenttt  for  larceny  nnd  embezzlement,  it  follows,  on  a  mutter  of  course, 
timt  proof  of  these  allegations  is  also  necessary." 

yeniie— Money  emlwzxled  without  the  sfa^e,— Under  statute  of  Mansa- 
chusettH  jmividing  that  "  the  offense  of  embezzlement  may  bo  prosecuted 
and  punished  in  any  county  in  whicli  the  person  charged  had  |K)HseHsion  of 
tho  property  alleged  to  have  been  embezzled,"  one  embezzling  property  out 
of  the  state  nmy  be  punished  in  any  county  of  the  state  in  which  ho  has 
possession  of  the  property.    Knowlton,  J.,  dissenting.     Com  v.  Parker,  165 

Mass.  526. 

Indictment— Failure  to  allege  that  money  embezzled  belonged  to  em- 
ployer,—In  a  prosecution  under  the  Oregon  statute  providing  for  the 
punishment  of  au  agent  of  any  corporation  who  "  shall  embezzle  or  fraud- 
ulently convert  to  his  own  use  ♦  *  *  any  money  •  ♦  ♦  of  another 
•  •  •  which  shall  come  into  his  possession  ♦  *  »  by  virtue  of  his 
employment,"  an  indictment  alleging  that  defendant,  as  agent  of  an  insur- 
ance company,  received  for  the  company  money  as  premiums  for  insiu-- 
ance,  which  he  failed  to  pay  over  or  account  for,  is  insuiiicient  for  failure 
to  allege  that  the  money  received  was  in  fact  the  monoy  of  tho  company. 
State  V.  Seams,  28  Or.  863. 

Agent— tt'hat  conittitutea.— One  who  embezzles  money  which  has  come 
into  his  possession  by  virtue  of  his  employment  is  none  the  less  an  agent 
because  he  and  another  compose  a  partnership  which  was  the  agent.  Carr 
V.  State,  104  Ala.  43. 

Private  banker,— The  liability  of  a  private  banker,  under  Code,  §  3707, 
for  fraudulently  converting  a  special  de|X)Mit  of  money,  is  none  the  less  that 
his  bank,  which  usM  the  money,  is  a  partnership,  and  such  case  is  covered 
by  an  allegation  of  conversion  "  to  his  own  use."    Id. 

Allegation  and  proof. — An  indictment  for  converting  a  special  deposit  of 
money  or  bank  notes  to  the  amount  of  $1,600.90  is  not  supported  by  testi- 
mony that  the  depositor  gave  defendant  an  eastern  check  of  $5,000  for  col- 
lection; that  he  sent  it  to  New  York;  that  the  bank  there  collected  the 
check,  and  credited  defendant's  bank  generally;  and  that  said  bank  checked 
out  the  proceeds  in  the  usual  course  of  business.    Id. 

W^ords  "  special  deposit "  may  be  explained, — Though  a  banker  marks  a 
credit  in  a  customer's  pass-book  "  Special  Deposit,"  and  gives  her  a  form  of 
check  so  marked  by  him,  it  may  be  shown  that  the  deposit  is  a  general 
one.    Id. 

Check  not  eqnivalent  to  money. — In  an  indictment,  an  allegation  of  con- 
version of  moneQT  does  not  cover  conversion  of  a  check.    Id, 


m 


¥^  . 


292 


'I;    ^ 


AMERICAN  CRIMINAL  REPORTS. 


Heoina  V.  IIendershott  AM)  Weltek. 


(26  Ontario  R.  678.) 

Evidence  :    Corm  t/a  inquest — Subsequent  charge  of  murder— Canada  Evi- 
dence  Act,  J89S— Motive— Prior  attempt  to  insure. 

1.  A  coroner's  court  is  a  criminal  court,  and  the  depositions  of  a  witness  be- 

fore such  court,  who  is  subsequently  charged  with  murder,  can  not, 
since  the  Canada  Evidence  Act,  1893.  be  received  in  evidence  against 
him  at  the  trial,  notwithstanding  privilege  was  not  claimed  by  liim  at 
the  inquest. 

2.  On  a  trial  for  murder,  the  alleged  motive  being  the  obtaining  of  iiLsiir- 

ance  moneys  on  policies  effected  by  the  prisoner  on  the  life  of  the  de- 
ceased, evidence  of  a  previous  attempt  by  the  prisoner  to  insure  another 
person  for  his  own  benefit  can  not  be  given  in  evidence  against  liim. 

In  the  High  Court  of  Justice. 

In  the  Court  of  Oyer  and  Terminer  in  and  for  the  County 
of  Elgin, 

Osier,  Q.  C,  D.  J.  0' Donahxio,  and  Kenneth  Cameron,  ap- 
peared for  the  Crown. 

John  A.  liobinson,  for  the  prisoner  IIendershott. 
Norman  Macdonald,  for  the  prisoner  Welter. 

The  prisoners,  John  A.  IIendershott  and  William  D.  Welter, 
were  indicted  for  the  murder  of  one  William  IIendershott,  a 
ne  ihewof  the  prisoner  IIendershott,  the  alleged  motive  being 
to  obtain  the  amounts  of  two  insurance  policies,  for  $G,000  and 
$.5,000  respectively,  which  had  been  effected  upon  the  life  of 
the  deceased  by  John  A.  Hendershott,  and  made  payable  to 
himself. 

The  trial  took  place  at  St.  Thomas,  on  March  13,  14, 15,  IC, 
18,  19,  20,  21,  22  and  23,  1895,  before  Meredith,  C.  J.,  and  a 

During  the  progress  of  the  trial  it  was  proposed  by  the 
Crown  counsel  to  put  in  the  evidence  given  before  the  coroner 
by  both  the  prisoners,  who  appeared  at  the  inquest  and  were 
examined  as  witnesses,  and  gave  their  testimony  in  that  ca- 
pacity previous  to  their  being  charged  with  the  crime. 


REGINA  V.  HENDERSHOTT  AND  WELTER. 


293 


Meredith,  C.  J.  I  am  going  now  to  dispoi  ^  of  the  question 
of  the  admissibility  of  the  evidence  taken  before  the  coroner, 
which  was  tendered  on  Saturday. 

The  objection  taken  by  the  prisoners  is  that  section  5  of  the 
Act  56  Vict.,  Ch.  31  ( D.),  prevents  these  depositions  being  used 
as  evidence  against  them.  The  language  of  the  section  is : 
"  No  person  shall  be  excused  from  answering  any  question 
upon  the  ground  that  the  answer  to  such  question  may  tend  to 
criminate  him,  or  may  tend  to  establish  his  liability  to  a  civil 
proceeding  at  the  instance  of  the  Crown  or  of  any  other  per- 
son; provided,  however,  that  no  evidence  so  given  shall  be 
used  or  receivable  in  evidence  against  such  person  in  any  crim- 
inal proceeding  thereafter  instituted  against  him  other  than 
a  prosecution  for  perjury  in  giving  such  evidence." 

Had  that  statute  not  been  passed,  I  think  there  is  no  doubt 
that  the  cases  referred  toby  the  learned  counsel  for  the  Crown 
are  decisive  upon  the  point  that  it  was  the  duty  of  the  person 
examined,  if  he  sought  to  avail  himself  of  his  privilege,  to 
have  objected  to  answer,  and  if  he  had  not  done  so,  that  the 
depositions  might  be  read  in  evidence  against  him.  The  cases 
fo  Regina  v.Voote,  L.  R.  4:  P.  C.  599,  and  Regina  v.  Connolly^ 
25  0.  R.  151,  referred  to,  seem  conclusive  upon  that  point. 
They  proceeded  upon  the  ground  that  as  the  law  then  stood 
the  person  who  was  called  as  a  witness  had  the  right  to  object 
to  answer  any  question  which  might  tend  to  criminate  him, 
and  that  if  he  did  not  object,  he  waived  that  privilege.  I 
think  the  statute  has  made  an  entire  change  in  that  respect, 
and  that  now  no  privilege  at  all  exists  in  a  matter  to  which 
the  statute  relates,  but  that  when  that  privilege  has  been 
taken  away,  the  law  also  has  provided  that  the  evidence  given 
shall  not  be  received  in  evidence  against  the  prisoner  in  any 
criminal  proceeding. 

In  the  case  of  The  Queen  v.  Btittle,  reported  in  L.  R.  1 ,  C. 
C.  R.  218,  where  the  prisoner  was  indicted  for  perjury  com- 
mitted with  respect  to  an  election,  the  point  taken  by  the 
learned  counsel  for  the  crown  would  have  been  open,  but  it 
was  not  taken,  and  it  seems  to  have  been  assumed  that  a 
similar  statute  to  this  was  absolute  in  preventing  the  evidence 
heing  received  against  the  person  who  had  given  it  in  any 
criminal  proceeding,  save  in  excepted  cases. 

I  think  the  construction  which  Mr.  Osier  asked  me  to  put 


,  iv;^ 


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294 


AMERICAN  CRIMINAL  REPORTS. 


upon  the  statute,  requires  me  to  read  into  it  words  that  are 
not  found  there;  that  substantially  I  must  read  it  to  give 
effect  to  his  contention,  as  if  it  had  said :  "  Provided  such  per- 
son claims  such  jmvilege."  I  find  no  such  words  in  the  stat- 
ute. But,  in  the  Dominion  statute,  dealing  with  an  analogous 
subject  (the  Controverted  Elections  Act,  R.  S.  C,  Ch.  9,  Sec. 
39),  the  provision  is :  "  No  person  shall  be  excused  from 
answering  any  question  put  to  him  under  this  act,"  similar 
language  to  that  contained  in  section  6,  "  touching  or  concern- 
ing any  election,  or  the  conduct  of  any  person  thereat  or  in 
relation  thereto,  on  the  ground  of  any  privilege,  or  that  the 
answer  to  such  question  will  tend  to  criminate  such  person; 
but  no  answer  given  by  any  person  claiming  to  be  excused  on 
the  ground  of  privilege,  or  that  such  answer  will  tend  to  crimi- 
nate himself,  shall  be  used  in  any  criminal  proceeding  against 
any  such  person." 

It  would  appear,  therefore,  that  where  the  legislature  in- 
tended that  the  person  should  claim  the  privilege,  it  has  said 
so  in  express  words.  There  is  no  such  limitation  in  the  section 
in  question.  I  think,  therefore,  that  if  the  statute  applies  to 
the  proceedings  before  the  coroner,  it  prevents  the  use  of  the 
evidence  that  was  taken  there  as  evidence  against  the 
prisoners. 

The  only  remaining  question  then  is,  does  it  apply  to  the 
evidence  so  taken  ?  That  depends  upon  the  effect  of  section 
2 :  "  This  act  shall  apply  to  all  criminal  proceedings,  and  to 
all  civil  proceedings  and  other  matters  whatsoever  respecting 
which  the  Parliament  of  Canada  has  jurisdiction  in  this  be- 
half." 

The  only  point  which  I  had  any  doubt  upon  was  as  to 
whether  the  proceedings  before  the  coroner,  no  person  having 
then  been  charged,  was  a  matter  within  the  jurisdiction  of  the 
Parliament  of  Canada,  or  whether  it  might  not  be  a  matter 
within  the  jurisdiction  of  the  provincial  legislature,  and, 
therefore,  not  affected  by  the  provisions  of  the  statute.  But, 
upon  examination,  I  find  that  the  coroner's  court  is  a  court  of 
record,  and  it  is  treated  as  a  criminal  court. 

It  is  said  in  Blackstone,  4th  volume,  at  page  274,  that  the 
coroner's  court  is  a  court  of  record,  and  a  criminal  court  of 
the  realm.  In  Regina  v.  Ilerford,  3  E.  &  E.  115,  a  very  strong 
court  expressed  the  decided  opinion  that  it  was  a  criminal 


REGINA  V.  HENDERSHOTT  AND  WELTER. 


295 


court  the  question  there  being  whether  prohibition  would  lie 
to  the  court,  it  being  a  criminal  court. 

It  seems  to  me,  therefore,  it  being  a  criminal  court,  and  the 
section  requiring  the  construction  which  I  have  put  upon  it, 
that  it  is  impossible  that  these  depositions  can  be  read  in  evi- 
dence against  the  prisoners,  and  I  therefore  reject  them  as 
evidence. 

At  another  stage  of  the  case,  a  witness  was  asked  a  question 
which  was  objected  to,  when  Mr.  Osier,  for  the  Crown,  stated 
that  he  proposed  to  prove  by  the  witness  that  at  a  conversation 
which  took  place  in  June,  1894,  between  the  witness  and  the 
prisoners,  the  latter  endeavored  to  persuade  him  to  allow  them 
to  insure  his  life;  that  the  witness  said  he  had  no  money;  that 
the  prisoner  Hendershott  then  said  he  would  pay  it  if  he  would 
make  the  policy  payable  to  him,  and  that  as  the  result 
of  the  conversation  an  application  was  made  for  life  insurance, 
in  which  Hendershott  and  Welter  acted  together,  Welter  tak- 
ing the  witness  to  a  doctor's  office;  and  that  the  Crown  pro- 
posed to  prove  that  the  result  was  that  the  application  was 
refuse<l;  that  notwithstanding  that  refusal,  the  witness  was 
taken  to  a  doctor  outside  of  the  city,  to  a  place  where  he  was 
less  known;  and  that  having  been  prepared  for  examination, 
he  was  again  examined  and  favorably  reported  upon;  but  as  a 
result,  the  insurance  was  refused.  The  Crown  also  proposed 
to  show  a  promise  by  Hendershott  to  give  the  witness  plenty 
of  money  for  drinking  after  the  insurance  was  effected,  and  to 
show  that  there  was  fraud  attempted  to  be  perpetrated  upon 
the  insurance  company  in  placing  such  life  insurance;  and  that 
the  man  in  his  application  was  wilfully  misdescribed  by  the 
prisoner  Hendershott. 

OsLER,  Q.  C,  argued  that  the  evidence  \vas  admissible  on 
two  grounds.  First,  as  showing  a  criminal  intent  in  the  sub- 
sequentact  of  akindred  nature,  namely,  the  effecting  insurances 
on  the  life  of  the  deceased,  especially  having  regard  to  the 
evidence  of  the  witnesses  McConnell  and  French;  and  second, 
that  it  was  evidence  of  concert  between  the  prisoners;  citing 
as  authorities  Makin  v.  The  Attorney-General  of  New  South 
Wale«  [1894],  A.  C.  57;  The  Queen  v.  Geering,  18  L.  J.  N.  S., 
M.  C.  215;  Regina  v.  Dossett,  2  C.  &  K.  306;  liegina  v.  Gray,, 
4  F.  &  F.  1102. 


'\     \ 


\\\ 


V'M'. 


296 


AMERICAN  CRIMINAL  REPORTS. 


Robinson  (with  him  Norman  Macdonald),  contra^  objected 
on  the  ground  that  the  evidence  was  not  relative  to  the  issue 
but  was  collateral  matter  in  no  way  connected  with  the  case; 
that  the  prior  attempt  to  insure  showed  no  attempt  to  murder 
but  at  most  to  defraud;  and  that  it  was  never  consummated. 
It  was  not  linked  with  the  present  case,  and  showed  no  intent 
in  the  prisoner's  mind;  and  cited  Regina  v.  Window^  8  Cox,  397- 
Regina  v.  Odchj,  2  Den.  C.  C.  264. 

Meredith,  C.  J.  I  think  Mr.  Macdonald's  objection  is  well 
founded.  The  matter  as  to  which  the  evidence  is  proposed  to 
be  given  is  res  inter  alios  acta  and  therefore  inadmissible, 
unless  upon  the  evidence  given  by  the  witnesses  McConnell 
and  French,  it  can  be  said  that  it  is  evidence  of  an  attempt  to 
carry  out  the  plan  which,  according  to  that  evidence,  the 
prisoner  Hendershott  then  said  that  he  entertained;  but,  as  I 
am  by  no  means  satisfied  that  it  is  admissible,  even  upon  th.at 
ground,  I  think  I  am  bound  to  resolve  the  doubt  in  favor  of 
the  prisoners  and  to  reject  the  evidence. 

"SoT^.— Privileged  communications.— IJnAer  Code,  §  3643,  making  com- 
munications to  an  attorney  in  his  professional  capacity  privileged,  the 
prosecuting  attorney  can  not  be  required  to  testify  as  to  communications 
made  to  him  by  the  prosecuting  witness  in  a  criminal  case.  State  v, 
Housetoorth  et  al.,  91  la.  740. 

Deposition  at  preliminary  examination. — In  a  crirranal  trial  a  deposition 
of  the  defendant,  taken  on  his  preliminary  examination,  is  admissible  to 
impeach  his  testimony  as  to  the  same  facta,  his  attention  having  been  first 
called  to  it,  notwithstanding  Penn.  Code,  §  686,  provides  that  depositions  or 
preliminary  examinations  can  only  be  read  on  the  trial  where  the  witness 
is  dead,  or  insane,  or  absent  from  the  State.    People  v.  Hutcley,  111  Cal.  78. 

Admissible  for  any  purpose. — Evidence  admissible  against  one  of  two 
persons  under  joint  indictment  is  admissible  on  the  trial  of  both  jointly, 
under  proper  restrictions  as  to  its  effect,  though  prejudicial  to  the  defend- 
ant against  whom  alone  it  is  not  admissible.    State  v.  Cram,  67  Vt.  650. 

Same. — Under  an  exception  to  the  admission  of  evidence  against  one  of 
two  defendants  on  trial  jointly,  based  on  the  ^ound  that  the  evidence  was 
prejudicial  to  the  other  defendant,  the  court  can  not,  on  appeal  by  the  lat- 
ter from  the  ovemiling  of  the  exception,  consider  the  admissibility  of  the 
evidence  as  against  the  fonner  defendant.    Id. 

That  defendant  icas  of  weak  mind — Evidence  that  defendant  was  a 
man  of  weak  mind  is  inadmissible,  there  being  no  evidence  that  he  did  not 
have  mind  enough  to  distinguish  right  from  wrong.  Dean  v.  State,  105 
Ala.  21. 

That  defendant  was  excited. — Where  the  evidence  showed  that  the  de- 
fendant was  not  excited  at  the  time  he  killed  deceased,  evidence  relative  to 
his  excitable  nature  is  inadmissible.    Id. 


STATE  V.  HALL  ET  AL.  297 


State  v.  Hall  et  al. 
(115  N.  C.  811.) 

Extradition:    Authority  of  State  Oovemor. 

* 

1.  One  who  has  not  actually  been  within  the  territorial  limits  of  a  State 

since  the  commiaaion  of  the  crime  with  which  he  is  charged,  though 
it  was  conatructively  committed  therein,  can  not  "  flee  from  justice 
and  be  found  in  another  State,"  within  Const.  U.  S.  Art.  4,  §  3,  clause  2, 
providing  that  a  person  so  doing  shall  be  surrendered  on  demand  of 
the  State  from  which  he  fled. 

2.  In  the  absence  of  a  statuttj  requh-ing  him  to  do  so,  the  Governor  of  one 

State  has  no  authority  to  surrender,  upon  requisition  of  another 
State,  a  person  who  is  ciiarged  with  crime  therein,  but  who  has  not 
fled  from  justice,  within  the  meaning  of  Const.  U.  S.  Art.  4,  §  2,  clause  2. 
8.  A  State  may  provide  by  statute  for  the  surrender,  upon  requisition,  of 
persons  indictable  for  crime  in  another  State,  although  they  are  not 
fugitives  from  justice. 

Petition  by  "William  Hall  and  another,  for  a  writ  of  habeas 
corpus.  From  an  order  refusing  to  discharge  the  petitioners 
from  custody,  they  appeal.    Keversed. 

This  case  upon  former  appeal  is  reported  in  114  N.  C.  909. 

The  petitioners.  Hall  and  Dockery,  Avere  incarcerated  in  the 
jail  of  Cherokee  County,  on  a  warrant  issued  by  a  Justice  of  the 
Peace,  charging  them  with  being  fugitives  from  justice  from 
Tennessee  for  killing,  in  said  State,  one  Andrew  Bryson.  The 
judge  refused  to  discharge  the  prisoners,  and  recommitted 
them  to  jail  to  await  the  warrant  of  extradition,  and  they 
appealed.  After  setting  out  the  affidavit  and  the  warrant  of 
the  Justice  of  the  Peace,  and  their  arrest  thereunder,  they  show 
that  at  fall  term,  1892,  they  were  indicted  for  the  murder  of 
Andrew  Bryson;  and  at  spring  terra,  1893,  were  tried  and  con- 
victed; and  appealed  to  the  Supreme  Court  and  obtained  a 
new  trial  (setting  out  the  judgment  of  the  last  mentioned 
court).  They  further  show  that  at  spring  term,  1894,  the 
judgment  and  opinion  of  the  Supreme  Court  were  filed  in  the 
Slid  Superior  Court,  and  they,  being  brought  to  the  bar  of 
the  Court,  demanded  a  trial  by  jury;  whereupon  the  Judge 
informed  the  Solicitor  that  he  must  either  try  the  prisoners,  or 
they  would  be  entitled  to  their  discharge;  and  thereupon  the 
Solicitor  entered  a  not. pros.,  and  the  prisoners  were  discharged. 


i  .' 


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298 


AMERICAN  CRIMINAL  REPORTS. 


They  further  show  that  immediately  thereafter  they  were 
arrested  and  taken  in  custody  by  the  Sheriff  upon  the  war- 
rant of  the  Justice  of  the  Peace,  and  that  they  are  advised 
and  believe  that,  under  the  Constitution  and  laws  of  the  State 
and  United  States,  they  are  entitled  to  a  jury  trial  upon  said 
indictment  in  the  State  of  North  Carolina,  and  that  they  still 
stand  charged  with  the  murder  of  said  Bryson  in  the  Courts 
of  this  State,  and  can  not,  whilst  so  charged,  be  committed  or 
extradited  to  the  State  of  Tennessee  for  trial  for  the  same 
oflfense.  The  petitioners  further  show  that,  at  the  time  of  the 
alleged  killing  of  Bryson,  they  were  not  in  Tennessee,  nor 
have  they  been  in  said  State  since  the  alleged  killing;  and  they 
are  not  fugitives  from  justice  from  Tennessee;  and  they  are, 
and  ever  have  been,  citizens  of  North  Carolina,  and  at  the  time 
of  the  alleged  killing  of  Bryson  were  actually  in  North  Caro- 
lina, and  have  not  since  been  in  Tennessee.  They  further  show 
that  they  are  not  guilty  of  the  alleged  murder,  in  the  State  of 
Tennessee  or  elsewhere,  and  pray  that  the  writ  of  haheas 
corpus  may  issue,  directed  to  the  sheriff  and  to  whomsoever 
may  hold  your  petitioners  in  custody,  commanding  him  or 
them  to  have  your  petitioners  before  your  Honor  immediately 
for  the  purpose  of  inquiring  into  the  cause  of  their  commit- 
ment and  detention,  and  that  they  may  be  discharged  from 
custody. 

G.  8.  Ferguson,  for  petitioners. 
The  Attorney-General,  for  the  State. 

Avery,  J.  The  defendants  were  arrested  and  are  now  held 
under  the  statute  (Code,  §  1165),  which  provides  that  any  one 
of  certain  judicial  officers  therein  named,  "  on  satisfactory  in- 
formation laid  before  him,  that  any  fugitive  in  the  State  has 
committed,  out  of  the  State  and  within  the  United  States,  any 
offense  which  by  the  law  of  the  State  in  which  the  offense  was 
committed,  is  punishable,  either  capitally  or  by  imprisonment 
for  one  year  or  upward  in  any  State  prison,  shall  have  full 
power  and  authority,  and  is  hereby  required  to  issue  a  war- 
rant for  said  fugitive  and  commit  him  to  any  jail  within  the 
State  for  the  space  of  six  months,  unless  sooner  demanded  by 
the  authorities  of  the  State  wherein  the  oflfense  may  have  been 
committed,  pursuant  to  the  Act  of  Congress  in  that  case  made 


STATE  V.  HALL  ET  AL. 


299 


and  provided,"  etc.  It  is  manifest  that  the  prisoners  can  not 
be  lawfully  detained,  under  the  unmistakable  language  of  the 
law,  unless  it  has  been  made  to  appear  that  they  are  liable  to 
extradition  under  the  Act  of  Congress,  passed  in  pursuance  of 
article  4,  §  2,  cl.  2,  of  the  Constitution  of  the  United  States,  in 
order  to  provide  for  the  surrender  of  persons  charged  with 
criminal  offenses  "  who  shall  flee  from  justice  and  be  found  in 
another  State."  The  prisoners  were  tried  for  murder  in  Cher- 
okee County,  and  upon  appeal,  it  was  held  (114  N".  C.  900)  that, 
if  the  deceased  at  the  time  of  receiving  the  fatal  injury  was  in 
the  State  of  Tennessee,  and  the  prisoners  were  in  the  State  of 
North  Carolina,  the  courts  of  the  former  commonwealth  alone 
had  jurisdiction  of  the  offense.  The  prisoners,  if  such  were 
the  facts,  were  deemed  by  the  law  to  have  accompanied  the 
deadly  missile  sent  by  them  across  the  border,  and  to  have  been 
constructively  present  when  the  fatal  wound  was  actually  in- 
flicted. As  our  statute  confers  no  power  to  detain  in  custody 
or  to  surrender,  at  the  demand  of  the  Executive  of  another 
State,  any  person  who  does  not  fall  within  the  definition  of  a 
"fugitive  from  justice,"  according  to  the  interpretation  given 
by  the  Courts  of  the  United  States  to  the  clause  of  the  Fed- 
eral Constitution  providing  for  interstate  extradition,  and  the 
Act  of  Congress  passed  in  pursuance  of  it,  the  only  question 
before  us  is  whether  a  person  can,  in  contemplation  of  law, 
"  flee  from  justice "  in  the  State  of  Tennessee  when  he  has 
never  been  actually,  but  only  constructively,  within  its  terri- 
torial limits.  Upon  this  question  there  is  abundant  authority, 
emanating,  not  only  from  the  foremost  text  writers  and  some 
of  the  ablest  jurists  of  the  most  respectable  State  courts,  but 
from  the  Supreme  Court  of  the  United  States,  whose  peculiar 
province  it  is  to  declare  what  interpretation  shall  be  given 
to  the  Federal  Constitution  and  the  statutes  enacted  by  Con- 
gress in  pursuance  of  its  provisions,  which  are  declared  by  that 
instrument  to  be  the  supreme  law  of  the  land.  If  we  can  sur- 
render, under  our  statute,  only  fugitives  within  the  meaning  of 
the  Act  of  Congress,  it  would  seem  sufficient  to  cite  Ex  parte 
Reggel,  114  U.  S.  642  (5  Am.  Cr.  Pr.  20),  where  it  is  held  that 
a  person  arrested  as  a  fugitive  has  a  right  "  to  insist  upon 
proof  that  he  was  within  the  demanding  State  at  the  time  he 
is  alleged  to  have  committed  the  crime  charged,  and  conse- 
quently withdrew  from  her  jurisdiction,  so  that  he  could 


300 


AMERICAN  CRIMINAL  REPORTS. 


I;       'i; 


not  be  reached  by  her  criminal  process."  It  is  admitted  that 
the  prisoners  have  never  withdrawn  from  the  jurisdiction 
of  the  Courts  of  Tennessee,  and  have  never  been,  either  at  the 
time  when  the  homicide  was  committed  or  since,  exposed  to 
arrest  under  process  issuing  from  them.  But  in  a  case  involv- 
ing  so  important  a  principle,  and  calculated  to  excite  general 
interest  on  the  part,  especially,  of  the  legal  profession,  we  feel 
warranted  in  not  only  citing  but  quoting  from  other  author- 
ities. Where  a  person  is  charged  with  cheating  by  false  pre- 
tenses, by  means  of  a  misrepresentation  in  writing  sent  to 
another  State,  whereby  he  procures  something  of  value  in  the 
State  to  which  such  writing  goes,  he  is  deemed  to  be  construct- 
ivel}'^  present  where  the  false  pretense  is  successfully  used,  and 
where  the  money  or  property  is  obtained,  and  is  consequently 
liable  to  be  indicted  and  punished  there,  if  he  comes  within 
the  reach  of  the  process  of  its  courts.  People  v.  Adams,  3 
Denio,  190.  But  the  Supreme  Court  of  Alabama,  in  a  case  ex- 
actly in  point  {In  re  3fohr,  73  Ala.  503),  state  the  principle 
applicable  here  with  great  clearness  and  force.  The  defend- 
ant Avas  charged  with  cheating  by  false  pretenses  a  prosecutor 
in  the  State  of  Pennsylvania,  though  it  was  admitted  that  he 
had  never  actually  gone  within  the  limits  of  that  State.  The 
court  said : 

"  It  is  clear  to  our  minds  that  crimes  which  are  not  actually, 
but  are  only  constructively',  committed  within  the  jurisdiction 
of  the  demanding  State,  do  not  fall  within  the  class  of  cases 
intended  to  be  embraced  by  theConstitution  or  Act  of  Congress. 
Such,  at  least,  is  the  rule,  unless  the  criminal  afterward  goes 
into  such  State  and  departs  from  it,  thus  subjecting  himself  to 
the  sovereignty  of  its  jurdisdiction.  The  reason  is,  not  that 
the  jurisdiction  to  try  the  crime  is  lacking,  but  that  no  one 
can  in  any  sense  be  alleged  to  have  fled  from  a  State,  in  the 
domain  of  whose  territorial  jurisdiction  he  has  never  been  cor- 
porally present  since  the  commission  of  the  crime."  That 
court  cited  to  sustain  this  view,  among  other  authorities, 
Whart.  Cr.  PI.  (8th  Ed.),  231;  Kinyshmfn  Case,  106  Mass.  223; 
Fx  parte  Smith,  3  McLean,  121;  and  Wiicox  v.  Noxjle,  34  Ohio 
St.  520.  Bouvier  (Law  Diet.  551)  defines  a  "  fugitive  from  jus- 
tice "  as  "  one  who,  having  committed  a  crime  within  one  juris- 
diction, goes  into  another  in  order  to  evade  the  law  and  avoid 
punishment."    The  same  writer  says,  also,  that  the  executive 


STATE  V.  HALL  ET  AL. 


301 


of  a  State  can  not  be  called  upon  to  deliver  up  a  person  charged 
with  a  criminal  offense  in  another  State,  unless  it  appear  that 
such  person  "  is  a  fugitive  from  justice."  Rapalje  (Law  Diet. 
555)  detinos  a  "  fugitive  from  justice "  as  "  one,  who  having 
committed  a  crime  in  one  jurisdiction,  flees  therefrom  into 
another  jurisdiction  in  order  to  escape  punishment."  See,  also, 
1  Abb.  Law  Diet.  508,  for  definition  of  "  fleeing." 

To  hold  that  a  person  who  is  liable  to  indictment  only 
by  reason  of  his  constructive  presence  is  a  fugitive  from  the 
justice  of  a  State,  within  whose  limits  he  has  never  gone  since 
the  commission  of  the  offense,  involves  as  great  an  error  as  to 
maintain  that  one  who  has  stood  still,  and  never  ventured 
within  the  reach  of  another,  has  fled  from  him  to  avoid  injury. 
One  who  has  never  fled  can  not  be  a  fugitive.  Jones  v.  Leon- 
ard, 60  Iowa,  106;  7  Am.  &  Eng.  Enc.  Law,  640,  and  note  1; 
Id.  647.  Moore,  (in  his  work  on  Extradition,  volume  2,  §  581 
et  aeq.),  after  quoting  the  extract  already  given  from  Reggel's 
case,  cites  a  number  of  other  cases,  wherein  Governors  of 
States,  under  well  considered  opinions  of  their  legal  advisers, 
have  recognized  and  acted  upon  the  principle  that  a  person 
can  not  be  said  to  flee  from  a  place  where  he  has  never  actually 
been,  but  to  which  by  a  legal  fiction  he  is  deemed  to  have  fol- 
lowed an  agency  or  instrumentality,  put  in  motion  by  him,  to 
accomplish  a  criminal  purpose.  Spear  (Law  Extradition,  pp. 
396-400)  cites  and  discusses  the  authorities  bearing  upon  the 
question  whether  a  person  can  be  a  fugitive  from  a  State  into 
which  he  has  never  entered,  and  not  only  reaches  the  same 
conclusion  at  which  we  have  arrived,  but  maintains,  a)'(/uendo, 
that  a  person  who  has  been  extradited  as  a  fugitive  can  not 
be  sent  back  from  the  demanding  State,  on  requisition  of  the 
executive  who  surrendered  him,  to  answer  a  crime  committed 
while  he  was  a  fugitive,  because  one  who  is  forcibly  taken 
away  does  not,  in  contemplation  of  law  or  in  fact,  flee  from 
justice.  The  author  says  that,  to  assume  that  an  abduction  by 
force,  though  under  legal  process,  is  a  fleeing,  "  is  a  gross 
absurdity,  quite  as  bad  as  the  theory  of  fugitives  by  construc- 
tion." Had  it  not  been  provided  by  the  Constitution  of  the 
United  States  (article  4,  §  2,  clause  2)  that  '*  a  person  charged 
in  any  State  with  treason,  felony,  or  other  crime,  who  shall 
flee  from  justice  and  be  found  in  another  State,  shall,  on  de- 
mand of  the  executive  authority  of  the  State  from  which  he 


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302 


AMERICAN  CRIMINAL  REPORTS. 


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has  fled  be  delivered  up,"  etc.,  the  States,  as  to  the  right  to 
demand  and  the  power  to  surrender  fugitives  from  justice, 
would  have  sustained  relations  to  each  other  analogous  to 
those  existing  between  independent  nations.  State  v.  Cutshall 
110  N.  C.  538. 

If  no  stipulation  by  treaty  were  now  in  force  requiring  the 
Government  of  the  United  States  to  surrender,  on  requisition 
of  the  authorities  of  Canada,  persons  charged  with  murder  in 
that  Dominion,  those  guilty  of  such  crimes  would  find  this 
country  a  safe  asylum.  In  the  absence  of  any  provision  of 
law,  imposing  upon  the  executive  of  the  State  of  Nortli  Caro- 
lina the  duty  of  surrendering,  on  requisition  of  the  Governors 
of  other  States,  any  person  charged  with  a  criminal  oifense  in 
the  demanding  States,  except  such  as  shall  be  shown  to  have 
fled  from  justice  within  the  meaning  of  the  Federal  Constitu- 
tion, the  governor  must  search  in  vain  for  authority  to  issue  a 
warrant  of  extradition,  in  a  case  lilfe  this  before  us,  as  was  in 
effect  conceded  In  re  Sultan  (decided  at  this  term),  rejiorted 
in  115  N.  C.  57.  While  a  statute  passed  now,  and  making  it 
murder  to  willfully  put  in  motion  within  the  State  of  North 
Carolina  any  force  which  should  kill  a  human  being  in  a  neigh- 
boring State,  might  not  be  amenable  to  such  constitutional 
objection  as  that  discussed  in  State  v.  Knight,  Tayl.  Rep,  65  (44), 
it  would,  as  to  this  case,  be  an  ex  post  facto  law.  But  in  the  exer- 
cise of  its  reserved  sovereign  powers,  the  State  may,  as  an  act 
of  comity  to  a  sister  State,  provide  by  statute  for  the  surren- 
der, upon  requisition,  of  persons  who,  like  the  prisoners,  are 
indictable  for  murder  in  another  State,  though  they  have  never 
fled  from  justice.  If  it  shall  be  proved  that  tne  prisoners  were 
in  fact  in  North  Carolina  and  the  deceased  in  Tennessee  wlien 
the  fatal  wound  was  inflicted,  a  law  may  still  be  enacted  giv- 
ing the  governor  the  authority  to  issue  his  warrant  and  deliver 
them  on  requisition.  Meantime  it  may  be  asked,  what  can  be 
done  to  provide  for  this  casus  omissus  ?  We  may  answer,  in 
the  language  of  Spear  (supra,  p.  400) :  '*  Nothing,  by  any  ex- 
tradition process,  until  there  is  some  authority  of  law  for  it. 
*  *  *  State  statutes  may  be  enacted  to  furnish  a  remedy 
not  now  supplied  by  either  Federal  or  State  law."  Were  the 
courts,  without  any  semblance  of  right,  to  supply  the  legisla- 
tive omission, it  would  be  a  criminal  usurpation  of  autiioiitv, 
more  pernicious  to  the  public  interests  than  the  escape  of.  not 


STATE  V.  HALL  ET  AL. 


303 


two,  but  scores  of  criminals.  Appellate  Courts  can  not  delib- 
erately legislate  for  the  punishment  of  crime  without  incurring 
a  moral  accountability  as  grave  as  that  of  the  criminal  who 
suflfers  by  the  usurpation. 

The  Attorney-General,  with  commendable  frankness,  admit- 
ted that  he  could  iind  no  authority  to  sustain  his  contention. 
It  is  not  pretended  that,  a  single  Appellate  Court,  Federal  or 
State,  or  a  respectable  law  writer,  has  given  any  other  inter- 
pretation to  the  law  than  that  adopted  by  us.  Courts  can  not 
amend  or  override  constitutions  and  statutes,  and,  upon  the 
hit'her-law  idea,  anticipate  dilatory  legislatures  by  providing 
for  the  safety  of  the  public  in  the  event  that  anarchists  should 
project  deadly  missiles  across  a  State  border.  Mobs  can  bo  sup- 
pressed, under  the  common  law,  wherever  they  may  assemble 
for  an  unlawful  purpose  and  attempt  to  put  such  purpose  into 
execution.  But,  if  they  could  not,  it  would  be  the  duty  of  the 
legislature,  not  of  the  courts,  to  provide  for  their  suppression. 
If  there  is  any  foundation  for  apprehending  that  the  disor- 
derly elements  of  society  are  watching  for  opportunity  to  take 
life  and  destroy  property,  provided  they  can  see  a  way  of 
escape  through  the  loopholes  of  defective  laws,  the  represen- 
tatives of  the  people  must  be  trusted  to  meet,  if  not  anticipate, 
emergencies  as  they  arise.  Neither  actual  nor  possible  conse- 
quences should  deter  judges  from  executing  the  law  as  it  is 
plainly  written.  The  argumentum  ah  mconvenienti,  when  used 
to  bring  about  a  modification  of  a  well  established  principle  of 
law,  should  be  addressed  to  the  lawmaker,  whose  province  it 
is  to  provide  a  remedy  for  any  evils  growing  out  of  its  enforce- 
ment. Addressed  to  judges  under  such  circumstances,  it  is  an 
invitation  or  a  temptation  offered  to  violate  their  sacred  obli- 
gations in  order  to  appease  the  public.  In  Spier's  Cane,  1  Dev. 
491,  the  Supreme  Court  declared  the  prisoner  entitled  to  his 
discharge  upon  a  writ  of  haheaa  corpus  where  the  term  of  the 
court  expired  pending  his  trial  for  murder,  because  he  could 
not  be  again  put  in  jeopardy  for  that  offense.  The  defect  in 
the  law  was  subsequently  remedied  by  statute,  allowing  the 
court  to  continue  into  the  next  week,  if  a  felony  were  being 
tried  when  the  week  expired.  But  the  court,  composed  of 
Taylor,  Hall  and  Henderson,  did  not  hesitate  for  a  moment 
because  a  guilty  man  might  escape.  On  the  contrary.  Judge 
Hall  said :  "  The  guilt  or  innocence  of  the  prisoner  is  as  little 


i:.n.^ 


804 


AMERICAN  CRIMINAL  REPORTS. 


the  subject  of  inquiry  as  the  merits  of  any  case  can  bo  wlien 
it  is  brougiit  before  this  court  on  a  collateral  question  of  law." 
Courts  enforce  laws,  not  simply  to  punish  the  guilty,  but  as 
well  to  protect  the  innocent.  The  law  which  fails  to  provido 
for  the  extradition  of  a  guilty  man  must  be  understood  and 
adhered  to,  bocanso  it  may  be  invoked  as  a  protection  to  the 
innocent,  who  are  prosecuted  without  cause,  against  the  annoy- 
ancL',  exjwnse  and  invasion  of  personal  liberty  involved  in  being 
extradited.  There  was  error.  The  prisoner  should  have  been 
discharged. 


Cr.ABK,  J.  (dissenting).  It  is  a  fact,  agreed  in  this  petition, 
that  the  defendants,  being  in  this  State,  slew  the  deceased,  who 
was  over  the  line  in  Tennessee.  The  defendants  wore  indicted 
in  this  State  for  the  murder,  and  convicted.  On  appeal,  the 
conviction  was  reversed,  this  court  holdmg  {State  v.  llally  114 
N.  C.  909),  that  there  was  a  defect  of  jurisdiction  because  the 
offense  was  committed  in  Tennessee,  and  that  in  legal  contem- 
plation the  parties  committing  the  crime  were  in  Tennessee. 
If  they  were  in  Tennessee  when  they  committed  the  crime, 
they  are  now  in  North  Carolina,  and  in  legal  contemplation 
are  necessarily  fugitives  from  justice.  If  they  were  not  in 
Tennessee,  but  in  North  Carolina  when  they  committed  the 
crime,  then  it  was  error  to  hold  that  the  defendants  could  not 
ba  convicted  in  North  Carolina.  They  should  be  tried  in  the 
jurisdiction  in  which  they  were  wlien  the  offense  was  pei])e- 
trated.  That  has  been  held  to  be  in  Tennessee.  If  tlmt  is 
sound  law,  and  the  defendants  were  then  in  law  in  Tennessee, 
and  now  in  fact  are  in  North  Carolina,  they  are,  in  legal  con- 
templation, and  within  the  language  and  purport  of  the  extra- 
dition law,  "  fugitives  from  justice."  This  term  is  intended  to 
embrace  those  who,  having  committed  a  crime  in  one  State, 
endeavor  to  evade  justice  by  being  in  another  State,  whitlier 
the  ordinary  process  of  the  State  where  the  crime  was  com- 
mitted will  not  reach  them.  That  is  the  situation  of  these 
defendants.  They  are  sheltering  themselves  from  process  by 
being  in  another  State.  They  are  charged  with  murder  in 
Tennessee,  and  are  now  where  the  ordinary  process  of  the 
courts  of  that  State  can  not  reach  them.  They  can  only  be 
had  for  trial  in  the  State  of  the  commission  of  the  crime,  by 
application  to  the  Governor  of  the  State  where  they  are  to  be 


STATE  V.  HALL  ET  AL. 


305 


found.  Tlio.v  aro  proper  subjects  of  extradition.  If  a  mob 
occupying  the  Jersev  side  of  the  Hudson,  sliould  shell  the  city 
of  Now  York,  or  from  the  opposite  shore  of  the  Delaware, 
should  cannonade  the  city  of  Piiiladclphia,  its  monil)ers  would 
be  liable  to  no  ))unishmont  in  New  Jersey,  under  the  decisions 
of  the  courts,  because,  "  in  contemplation  of  law,"  the  mobo 
ai-e  in  New  York  and  Pennsylvania.  Hut  if  it  is  true,  as  is  con- 
tended by  the  defendants,  that  the  members  of  the  mob  can 
not  be  extradited  because  the  mob  never  was  in  those  cities, 
it  would  be  a  singular  state  of  things.  This  ruling  would  also 
place  Savannah,  Memphis,  St.  Louis,  Cincinnati,  Louisville  and 
hundreds  of  other  cities  and  towns  at  the  mercy  of  any  mob 
which  might  assemble,  with  weapons  of  long  range,  across  the 
Sta^o  line.  The  preamble  to  the  Constitution  of  these  States 
recites  that  it  was  ordained  "  to  form  a  more  perfect  union 
and  insure  domestic  tranquillity." 

Article  4,  §  2,  cl.  2,  provides  "  that  any  person  charged  in 
any  State  with  treason,  felony  or  other  crime,  who  shall  flee 
from  justice  and  bo  found  in  another  State,  shall,  on  demand 
of  the  executive  authority  of  t'le  State  from  which  he  fled,  be 
delivered  up  to  be  removed  to  the  State  having  jurisdiction  of 
the  crime."  It  would  be  a  restricted  construction,  and  little 
calculated  to  "  form  a  more  perfect  union  and  establish  do- 
mestic tranquillity,"  to  hold  that  a  "  fugitive  from  justice,"  in 
the  purview  of  this  provision,  applies  only  to  persons  who, 
being  actually  as  well  as  potentially  in  the  State  where  the 
crime  was  committed,  afterwards  departed  the  same.  A  person 
who  places  himself  outside  the  limits  of  the  State  from  thence 
to  commit  the  crime  within  said  State,  and  ever  afterwards 
avoids  going  into  said  State  to  avoid  arrest,  as  truly  "  flees 
from  justice "  as  he  who,  having  committed  a  crime,  flees 
from  the  State  subsequently.  If  an  infernal  machine  sent  by 
mail  or  express  from  a  distant  State  explodes  and  kills  the  re- 
ceiver, it  is  murder  committed  in  the  latter  State.  The  sender 
skulking  in  another  State  to  avoid  arrest  is  as  truly  a  fugitive 
from  justice  as  if  he  had  accompanied  the  machine  to  its  des- 
tination and  then  fled.  The  constitutional  provision  for  extra- 
dition, and  the  laws  passed  in  pursuance  thereof,  it  should  be 
remembered,  are  not  criminal,  but  remedial  provisions.  They 
should  therefore  be  liberally  construed  to  effect  the  purpose 
intended  to  be  served,  which  is  to  extend  into  another  State, 


■    ■'■ 


i :  .'  ^ 


nu 


W' 


PtTST 


30G 


AMERICAN  CRIMINAL  REPORTS. 


through  the  mediura  of  its  Executive,  the  process  of  the  State 
Avhose  laws  have  been  viohited.  This  process,  having  no  va- 
lidity beyond  its  borders,  can  only  be  made  available  to  arrest 
the  person  charged  with  crime  by  virtue  of  the  Governor  of 
the  State,  where  such  person  is  to  be  found,  acting  under  the 
extradition,  just  as  a  magistrate  of  one  county  may  indorse  a 
summons  issued  by  a  Justice  of  the  Peace  in  another  county 
under  the  Code.  Civ'li7«d  man  must  recoil  from  the  practical 
ruling  that  the  territory  adjacent  to  State  boundaries  is  a  "  no 
man's  land,"  and  that  murder  is  privileged  if  committed  across 
a  State  line.  It  may  be  safely  said  that  the  judge  who  first  laid 
down  a  ruling  from  which  such  result  practically  follows  did 
not  foresee  the  purport  and  effect  of  his  decision.  We  are 
called  upon  to  correct,  not  to  perpetuate  his  errors,  though 
others  have  since  followed  him.  It  is  true  that  this  restricted 
construction  has  been  placed  on  this  clause  by  several  courts  and 
text  writers,  but  their  opinions  are  merely  of  "  persuasive  au- 
thority," as  we  have  often  held,  and  entitled  onU'  to  the  weight 
due  to  the  reasons  they  give.  Years  ago  Chancellor  Kent  (I 
Comm.  477)  said  that  it  would  not  do  to  "  press  too  strongly 
the  rule  of  stare  decisis,  when  it  is  recollected  that  over  one 
thousand  cases  in  the  English  and  American  books  have  been 
overruled.  Even  a  series  of  decisions  are  not  always  conclu- 
sive, and  the  revision  of  a  decision  often  resolves  itself  into 
a  mere  question  of  expediency." 

His  remark  has  received  added  force  since  by  the  fact  that 
overruled  cases  now  number  several  thousand.  Especially  a 
constitutional  provision  can  not  be  nullified  or  rendered  of  no 
effect  by  the  erroneous  ruling  of  a  judge.  When  the  choice  is 
presented  us,  it  is  his  error,  and  not  the  constitution,  which 
must  be  disregarded.  This  is  clearly  so  if  the  constitution  is 
superior  to  the  power  of  a  court  to  amend  it  by  erroneous  in- 
terpretation. Courts  do  not  yet  claim  infallibility,  and  ure 
not  above  correcting  errors,  especially  in  a  matter  so  clearly 
against  the  very  intent  and  meaning  of  the  Federal  Constitu- 
tion, as  a  ruling  that,  though  a  murder  has  been  committed  in 
the  United  States,  yet  a  State  may  be  powerless  either  to  try 
the  murderer  when  found  in  its  borders  or  to  surrender  him 
to  another  State  where  he  may  be  tried.  There  is  no  author- 
ity or  precedent  in  this  State,  and,  this  being  with  ns  a  case 
"  of  novel  impression,"  we  are  not  hampered  from  giving  such 


STATE  V.  HALL  ET  AL. 


307 


construction  to  the  clause  as  is  most  consonant  to  our  views 
of  its  true  intent  and  purport.    It  is  true  the  several  States 
mi'^ht  pass  statutes  broader  than  the  clause  quoted  from  the 
Federal  Constitution,  but  it  is  also  true  that  some  of  them 
mio-ht  fail  to  do  so.    The  Federal  Constitution  does  not  con- 
template leavint?  the  security  of  so  many  cities  and  towns, 
lyin''  near  State  boundaries,  dependent  upon  the  inadvertence 
or  unwillingness  of  the  legislature  of  a  neighboring  State  to 
pass  an  extradition  law  more  liberal  than  the  Federal  Consti- 
tution.   Besides,  our  statute  (Code,  §  1165)  is  broader,  and 
authorizes  the  arrest  of  "any  fugitive"  who  has  committed 
the  crimes  therein  specified  "  out  of  the  State  and  within  the 
United  States."    A  fugitive  from  justice  is  simply  one  who, 
having  committed  a  crime  within  a  State,  keeps  himself  be- 
yond the  ordinary  process  of  the  courts  of  such  State.     The 
two  cases  cited  from  the  Supreme  Court  of  the  United  States 
{Ex  parte  Iteggel^  114  U.  S.  642,  and  Roberta  v.  lieilly,  116  U. 
S.  80),  read  according  to  the  spirit  instead  of  the  letter,  sustain, 
rather  than  militate  against,  this  view;  in  which  case  he  can 
be  demanded  of  the  executive  of  any  State  in  which  he  may 
be  found.    Even  if  there  had  been  no  constitutional  provision 
and  no  statute,  the  comity  existing  between  States  in  a  Fed- 
eral union  would  authorize  and  require  the  surrender  to  another 
State  of  a  ])ers()n  who  has  committed  murder  in  that  State 
while  standing  in  this  State.    Should  a  man  on  French  soil 
fire  and  kill  a  man  across  the  Rhine  on  German  territorv,  and 
the  French  government,  while  declaring  its  own  courts  incom- 
petent to  try  the  slayer,  should  at  the  same  time  refuse,  as  is 
here  done,  to  deliver  him  to  Germany  to  be  tried,  would  not 
war  promptly  follow  ?    Yet  certainly,  the  protection  to  the 
criminal  should  be  less  and  the  comity  greater,  between  States 
in  the  same  Union.     This  comity  between  States  recognizes  cor- 
porations chartered  n  other  States.    (P.  824.)    It  should  cer- 
tainly recognize  that  murder  is  a  high  offense  at  common  law 
against  a  sister  State,  and  we  should  refuse  to  shelter  the  per- 
petrator when  demanded  for  trial.    In  refusing  to  discharge 
the  prisoner  I  think  there  was  no  error. 

MacRae,  J.    I  join  in  the  above  dissent. 


/■i" 


1  ' 


Note.— Power  of  State  to  nirrender  fugitive.— T\ie  statement  In  the  ma- 
jority opiniun  to  the  effect  that  there  is  no  case  holding  that  a  State  can 


•i^;;*' 


308 


AMERICAN  CRIMINAL  REPORTS. 


not  surrender  to  another  State  a  fugitive  from  justice  without  a  stntiite  on 
the  subject,  is  not  sustained  by  the  facts.  In  18-J(),  one  Holmes  was  Uoliv- 
ered  to  the  Canadian  authorities  by  the  governor  of  Vermont  as  an  act  of 
comity.  He  sued  out  a  writ  of  halteas  corpus  before  the  Supreme  Covn-t  of 
that  State,  wlio  refused  to  discharge  him.  He  prosecuted  a  writ  of  error 
to  the  U.  S.  Supreme  Court,  and  tliat  court,  by  a  divided  court,  McKinley, 
J.,  not  taking  part  in  the  decision,  refused  to  reverse  tlie  decision  of  tiie 
Supreme  Court  of  "Vermont,  mainly  upon  the  ground  that  the  court  had  no 
jurisdiction  to  review  habeas  corpus  proceedings  on  writ  of  error  under  the 
law  as  it  then  stood;  Homes  v.  Jennison,  14  Peters,  540. 

Person  prosecuted  by  information  instead  of  indictment  not  crtradif. 
able. — In  Ex  parte  Hart,  63  Fed.  R.  249,  before  Goff  and  Simonton,  Circuit 
Judges,  and  Hughes,  District  Judge,  which  was  an  appeiil  from  a  judg- 
ment of  the  Circuit  Court  of  the  United  States  for  the  District  of  Jlary- 
land,  refusing  to  discharge  petitioner  from  custody,  to  which  he  had 
been  committed  awaiting  extradition,  Goff,  Circuit  Judge,  delivering  tho 
opinion  of  the  court,  states  that  on  January  8,  1894,  Samuel  H.  Hart  filed 
his  petition  for  a  writ  of  habeas  corpus  in  the  Circuit  Court  of  the  United 
States  for  said  district,  alleging  that  he  was  unjustly  deprived  of  his  lilierty 
— charged  with  the  crime  of  embezzlement.  The  court  directed  the  issu- 
ance of  the  writ,  which  was  done  accordingly,  and  from  the  return  thereto 
it  appeared  that  petitioner  was  held  in  custody  under  a  warrant  issued  by 
the  governor  of  the  State  of  Maryland  directed  to  Alexander  G.  Matthews, 
agent  of  the  State  of  Washington,  by  virtue  of  a  requisition  from  the  gov- 
ernor of  the  latter  named  State,  demanding  the  extradition  of  the  petitioner 
as  a  fugitive  from  justice.  With  the  return  were  filed  copies  of  the  requisi- 
tion papers  and  of  the  governor's  warrant  of  removal,  copies  of  which  were 
89t  forth,  but  which  are  here  omitted.  After  citing  the  s  vme  and  the  acts  of 
Congress  on  the  subject  of  extradition  in  the  course  oi  the  opinion,  it  is 
said: 

"  By  virtue  of  this  legislation,  it  was  the  duty  of  the  governor  of  the  State 
of  Maryland  to  cause  the  arrest  of  Hart,  and  his  delivery  to  the  agent 
designated  to  receive  him,  provided  it  appeared  by  the  papers  transmitted 
by  the  governor  of  the  State  of  Washington,  that  the  demand  made  for  the 
surrender  of  the  fugitive  was  accompanied  by  a  copy  of  an  indictment 
foimd,  or  affidavit  made  before  a  magistrate,  charging  him  with  having 
committed  treason,  felony,  or  other  crime  within  said  State  of  Washington, 
the  same  being  certified  as  authentic,  and  it  also  being  shown  that  the 
party  so  charged  was  a  fugitive  from  justice,  and  within  the  jurisdiction 
of  the  State  of  Slaryland.  Were  these  essential  provisions  of  the  law  com- 
plied with  ?  The  removal  of  a  citizen  from  one  State  to  another  as  a  fugi- 
tive from  justice  is  a  matter  of  great  importance,  and  worthy  of  serious 
consideration,  yet  always  to  be  ordered,  when  a  proper  case  is  made. 
Such  action  is  based  upon  article  4,  section  3,  of  the  Constitution  of  the 
United  States,  and  the  laws  enacted  to  enable  the  same  to  be  executed. 
The  provision  referred  to  will  be  strictly  construed,  and  all  the  require- 
ments of  the  statute  must  be  respected.  In  this  case,  does  it  appear  that 
the  papers  transmitted  and  certified  to  by  the  governor  of  the  State  of 
Washington  were  of  the  character  required  for  the  purpose  of  securing  a 
warrant  of  arrest  and  extradition?  The  first  retiuisition,  dated  December 
28,  1898,  recites  that  it  appears  by  a  copy  of  an  "  information,"  which  is 


STATE  V.  HALL  ET  AL. 


309 


annexed,  and  certified  to  be  autlientic,  that  the  petitioner  stands  charged 
with  the  crime  of  larceny  by  embezzlement.  We  do  not  consider  tliis  a 
compliance  with  the  act  of  Congress,  which  we  think  requires  the  copy  of 
an  indictment  found  by  a  grand  jury,  and  not  the  copy  of  an  information 
filed  by  the  attorney  of  the  State.  An  information  can  not  be  regarded  as 
a  substitute  for  an  indictment  where  the  latter  is  required  in  the  legislation 
now  under  consideration.  While  it  is  in  the  power  of  the  States  to  provide 
for  the  prosecution  and  punislmicnt  of  all  manner  of  crime  by  information, 
and  without  indictment  by  a  grand  jury  (as  was  held  by  the  Supreme 
Court  of  the  United  States  in  Hurtutlo  v.  California,  110  U.  S.  516  (S.  C,  4 
Am.  Cr.  R.),  still,  if  they  wish  to  rely  uikju  the  provisions  of  the  Constitution 
and  laws  of  tlie  United  States  relating  to  fugitives  fiom  justice,  they  must 
strictly  observe  and  respect  the  conditions  of  the  same.  The  indictment 
had  in  mind  by  those  who  framed  the  Constitution  and  enacted  the  statute 
referred  to,  was  "  a  written  accusation  of  one  or  more  persons  of  a  crime  or 
misdemeanor  preferred  to  and  presented  upon  oath  by  a  grand  jury."  4 
Bl.  Com.  299-303.  The  Supreme  Court  of  the  United  States  has  recently 
described  an  indictment,  as  tliat  word  is  used  in  the  Constitution,  as  "  the 
presentation  to  ^'le  proper  court,  under  oath,  by  a  grand  jury,  duly  impan- 
eled, of  a  charge  describing  an  offense  against  the  law  for  which  the  party 
charged  may  be  punished."  Ex  parte  Bain,  121  U.  S.  1.  In  this  first 
r.!(iuisition  the  copy  of  the  information  is  all  that  is  certified  to  be  authen- 
tic. Holding,  as  we  do,  that  the  information  can  not  be  considered  as  the 
e  luivalent  of  an  indictment,  we  will  now  examine  the  argument  of  coun- 
a  '1  for  the  State  of  Washington  that  the  verification  of  the  information 
will  be  regarded  as  such  an  atBdavit  as  is  required  by  the  law. 

The  information  is  verified  by  the  prosecuting  attorney,  who  swears  that 
h?  believes  the  contents  thereof  to  be  true,  not  that  they  are  true.  This 
is  not  such  charging  of  the  commission  of  a  crime  before  a  magistrate  of 
tlie  State  as  is  contemplated  by  the  statute.  For  the  purposes  of  an  affi- 
davit to  be  used  for  the  arrest  and  removal  of  a  fugitive  from  justice,  this 
is  not  sufficient.  Tlie  affidavit  required  in  such  cases  should  set  forth  the 
facts  and  circumstances  relied  on  to  prove  the  crime,  under  the  oath  or 
alirmation  of  some  person  familiar  with  them,  whose  knowledge  relative 
t  leieto  justifies  the  testimony  as  to  their  truthfulness,  and  should  not  be 
the  mere  verification  of  a  court  paper  by  a  public  official,  who  makes  no 
claim  to  personal  information  as  to  the  subject-matter  of  the  same.  Ex 
parte  Smith,  3  McLean,  121;  In  re  Doo  iroon.  18  Fed.  Rep.  898;  Ex  parte 
Morgan,  20  Fed.  Rep.  298.  By  requiring  such  an  affidavit,  the  liberty  of  the 
citizen  is,  to  a  great  extent,  prote<'ted,  and  the  executive  upon  whom  the 
del  land  is  made  is  thereby  enabled  to  determine  if  there  is  cause  to  believe 
that  a  crime  has  been  committed.  To  authorize  a  removal  of  a  citizen  of 
Maryland  to  the  State  of  Washington  for  trial  on  a  charge  of  crime,  some- 
thing more  than  the  oath  of  a  party  unfamiliar  with  the  facts  that  he  be- 
lieves the  allegations  of  an  information  to  be  true  should  be  required,  and  is 
demanded  by  the  law.  To  hold  otherwise  would  enable  irresponsible  and 
designing  parties  to  make  false  charges  with  impunity  against  those  who 
may  be  the  subjects  of  their  enmity,  and  permit  theni,  after  they  have 
caused  public  officials  to  believe  tlieir  representations,  to  secure  the  arrest, 
imprisonment  and  removal  of  innocent  persons  on  papers  regular  in  char- 
acter, but  without  merit  and  fraudulent  in  fact. 


Mil     1 

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310 


AMERICAN  CRIMINAL  REPORTS. 


It  will  be  observed  in  this  connection  that  the  affitlavits  of  Alcxamler 
McNicol,  dated  December  33,  1893,  and  of  Clem  T.  Reese,  dated  Dcceiiibir 
27,  1893,  filed  with  the  governor  of  the  State  of  Washington,  and  by  liim 
sunt  to  the  governor  of  the  State  of  Maryland,  are  not  considered,  because, 
among  other  reasons,  they  are  not  recited  in  nor  used  to  obtain  the  warrants 
for  extradition,  and  are  not  certified  to  be  authentic  in  either  of  the  war- 
rants so  issued.  They  can  not,  therefore,  be  regai-ded  as  affidavits,  uniler 
the  section  authorizing  the  warrant  of  removal;  and,  in  the  view  tliat  we 
take  of  this  case,  it  will  Hot  be  necessary  for  us  to  examine  the  tiuestions 
whether  an  offense  has  in  fact  been  committed,  and  if  the  petitioner  is  a 
fugitive  from  justice,  on  which  points  it  is  insisted  tliatsaid  aflidavits  can 
be  considered. 

The  governor  of  the  State  of  Washington  evidently  reached  the  conclu- 
sion that  the  requisition  made  by  liim  on  the  23d  of  December,  1893,  was 
defective,  for  we  find  that  he  caused  another  to  be  issued  on  the  27th  day 
of  December,  1893,  in  wliich  it  is  recited  that  "  it  appears  by  a  copy  of  in- 
dictment, whicli  is  herewith  annexed,  and  which  I  certify  to  be  authentic 
and  duly  authenticated  in  accordance  with  the  laws  of  this  State,  that 
Samuel  H.  Hart  stands  charged  with  the  crime  of  larceny  by  embezzle- 
ment," etc.  On  examination  of  the  papers  annexed,  we  find  that  no  such 
opy  of  indictment  is  attached,  but  that  the  copy  of  an  information  filetl  by 
the  prosecuting  attorney  on  the  27th  day  of  December,  1893,  against  said 
Hart,  is  filed  with  and  made  part  of  the  papers  with  the  requisition.  The 
absence  of  the  copy  of  the  indictment  is  fatal  to  the  validity  of  tlie  warrant, 
which  does  not  pretend  to  be  founded  on  the  copy  of  information  nor  of 
aiidavit,  but  of  the  indictment  alone.  The  lopy  of  the  information  does 
not  support  the  requisition,  and  if  it  did,  for  tlie  reasons  heretofore  given, 
would  not  be  sufficient. 

The  claim  that  the  act  of  the  governor  of  a  State  in  issuing  his  warrant 
of  removal  is  conclusive,  and  tliat  the  presumption  is  he  had  the  necessary 
papers,  duly  authenticated,  before  him,  when  he  acted,  can  not  be  as- 
sented to.  The  act  of  the  governor  can  be  reviewefl.  and,  if  he  has  not  fol- 
lowed the  directions  and  observed  the  conditions  of  the  Constitution  and 
laws  of  the  United  States,  pertinent  to  such  matters,  can  be  set  aside  as 
void.  The  highest  as  well  as  the  most  obscure  official  must  I'esjtect  the  re- 
quirements of  the  Constitution  and  the  laws  made  thereunder.  The  acts  of 
the  executive  are  subject  to  i-eview  by  the  courts  by  means  of  the  writ  of 
habeas  Ci>r2nis.  It  is  not  now  necessary  to  cite  authorities  on  this  question, 
nor  to  recall  incidents  in  English  history,  showing  that  this  writ  will  issue, 
no  matter  how  obscure  the  prisoner,  nor  how  great  the  power  of  the  official 
who  detains  him.  We  find  that  the  requisition  issued  by  the  governor  of 
Washington  did  not  comply  with  the  law,  and  that  the  governor  of  the 
State  of  Maryland  was  not  furnished  with  a  copy  of  either  an  indictment 
or  affidavit,  made  as  required  by  section  5278  of  the  Revised  Statutes  of  the 
United  States,  and  consequently  we  hold  that  the  warrant  of  removal  is 
void. 

The  Supreme  Court  of  Wisconsin  In  re  Hooper,  58  N.  W.  R.  741,  holds  that 
a  copy  of  an  information  duly  certified,  is  a  compliance  with  the  law.  But 
I  am  inclined  to  the  opinion  that  the  reasoning  of  the  Circuit  Court  of  the 
United  States,  above  quoted,  is  good  law. 

Requiiement   of  State   statutes. — An  Iowa  statute  requires  that   the 


STATE  V.  HALL  ET  AL. 


311 


requisition  shall  be  accompanied  by  sworn  evidence  that  the  person  charRod 
is  a  fugitive  from  justice.  And  the  court  in  construing  it  says  that  the 
mere  statement  in  the  affidavit  that  the  accused  is  a  fugitive  from  justice 
is  not  sufficient,  but  that  the  facts  must  be  stated  from  wliicli  the  governor 
can  determine  wliather  or  not  lie  is  a  fugitive.    Jones  v.  Leonard,  50  Iowa 

108;  32  Am.  Rep-  H^- 

Statutes  providing  for  the  arrest  of  one  accused  of  being  a  fugitive  from 
justice,  before  the  requisition  arrives  for  his  rendition  may  impose  any  con- 
dition which  the  legislature  may  think  necessary.  State  v.  Swope,  73  Mo. 
899;  Ex  parte  Lon'aine,  16  Nev.  03. 

The  requisition. — Statements  of  the  governor  in  his  requisition  can  not 
aid  a  defective  affidavit.    Ex  jiarte  Smith,  3  McLean,  121. 

The  indictment. — The  fact  that  the  indictment  fails  to  mention  the  full 
christian  names  of  the  person  demanded  will  not  justify  the  governor  in 
refusing  to  deliver  him  up.     People  v.  Byrnes,  33  Hun,  98. 

The  absence  of  the  seal  of  the  clerk  of  court  in  which  the  indictment  pur- 
ports to  have  been  found  and  of  a  file  mark  on  the  indictment  is  immate- 
rial.   Hibler  v.  State,  43  Tex.  197. 

Criminal  charge. — Tlie  papers  must  make  it  appear  that  the  person  de- 
manded is  substantially  charged  with  a  crime  against  the  laws  of  the  State, 
from  whose  justice  he  is  alleged  to  have  fled,  by  an  indictment  or  an  affi- 
davit certified  by  the  governor  an  authentic.  Roberta  v.  Reilly,  116  U.  S. 
8U;  29  L.  Ed.  544. 

Ri(jht  to  look  behind  papers  or  to  make  other  requirements. — The  question 
of  the  sufficiency  of  the  indictment  and  the  guilt  of  the  accused  must  be 
left  to  be  determined  by  the  courts  of  the  State  where  the  trial  is  to  be  had. 
lie  lioberts,  24  Fed.  Rep.  132. 

The  surrender  can  not  be  refused  because  the  statute  creating  the  offense 
for  which  the  surrender  is  demanded,  is  alleged  to  be  unconstitutional. 
Pearce  v.  Texas,  155  U.  S.  311. 

hi  a  State  where  printed  copies  in  volumes  of  statutes  of  another  State 
are  required  by  statute  to  be  admitted  as  presumptive  evidence  of  such  laws 
if  the  crime  charged  is  not  alleged  to  be  an  oflfense  against  the  laws  of  the 
demanding  State,  such  printed  volumes  of  laws  may  be  examined  to  ascer- 
tain whether  it  is  or  is  not  an  oflfense.     E.v  parte  Shehlon,  34  Ohio  St.  319. 

A  resident  of  North  Carolina,  who,  while  in  Pennsylvania,  procures,  by 
false  representations,  a  contract  for  the  shipment  of  goods  from  that  place 
to  his  residence,  and  then  returns  there  and  receives  the  goods,  and  is  in- 
dicted in  Pennsylvania  for  false  representations,  is  a  fugitive  from  justice, 
and  may  be  extradited.    In  re  Sultan,  115  N.  C.  57. 

Where  a  warrant  of  extradition  is  granted  by  the  governor,  the  courts 
will  not  inquire  into  the  motive  and  purpose  of  the  extradition  proceedings 
to  ascertain  whether  the  object  thereof  is  to  punish  crime  or  collect  a  debt. 
Id. 

But,  as  said  by  Mr.  Justice  Brewer,  it  is  the  duty  of  the  court  to  re- 
view the  proceedings  to  see  that  no  extradition  is  consummated  upon  a  mere 
pretext,  or  to  subserve  private  malice.    In  re  Harris,  83  Fed.  Rep.  165. 

Where  a  requisition  is  made  upon  the  governor  of  one  State  by  the  gov- 
ernor of  another  State  for  the  return  of  an  alleged  fugitive  from  justice, 
and  the  requisition  is  accompanied  by  a  copy  of  the  complaint  filed  in  the 
court  to  which  the  party  whose  return  is  demanded  was  held  to  appear  by 


a 


312 


AMERICAN  CRIMINAL  REPORTS. 


the  examining  magistrate,  and  also  a  copy  of  the  evidence  adduced  at  the 
preliminary  liearing  before  the  magistrate,  and,  on  being  arrested  under  a 
warrant  isl^ued  by  the  governor  in  compliance  with  the  request  of  such 
requisition,  \he  party  sues  out  a  writ  of  habeas  corpus  in  the  District  Court, 
or  before  a  judge  thereof,  and,  to  reverse  the  order  of  the  District  Court  or 
judge  denying  the  relief  prayed  for,  brings  the  case  to  this  court  by  petition 
in  en'or,  tlie  evMence  taken  at  the  preliminary  hearing  will  not  be  exam- 
ined for  th  •  ise  of  ascertaining  whether  it  sustains  a  charge  of  a 
crime  a.lcrrp'  n  information,  nor  to  determine  whether  it  supports  tlie 
flndi  tig  of  tb»  11 ;  Mg  court  that  there  was  probable  cause  to  believe  the 
part; '  had  committi:d  the  crime  with  which  he  was  charged.  In  re  Van 
5m"en,  43f.'b.  772. 

Where  ar.'quisi'^on  is  "-  mpanied  by  a  copy  of  an  indictment  found 
by  a  grand  jury,  the  fact  tniit  an  indictment  has  been  found  is  at  least 
prima  facie  evidence  that  tlip  act  charged  is  a  crime,  and  is  so  regarded  in 
the  State  where  the  act  was  done,  and  where  the  policy  of  prosecution  by 
information  has  been  established  by  law,  and  it  appears  from  the  record 
accompanying  the  requisition  that  the  party  whose  rendition  is  asked  has 
been  accorded  a  preliminary  examination,  as  a  result  of  which  he  waa 
held  to  appear  and  a'iswer  to  the  charge  in  a  higher  court,  and  has  been 
duly  charged  with  the  crime  in  the  higher  court,  in  an  information  filed 
therein,  a  copy  of  which  is  attached  to  the  papers  presented  with  the  requi- 
sition to  the  governor,  such  information  is  of  as  high  a  grade,  as  a  criminal 
pleading,  as  an  indictment,  and  entitled  to  the  same  weight  as  evidence, 
and  will  be  so  considered.    Id. 


(Common  Pleas  Division.) 

Regina  v.  Paiterson. 

(26  Ontario  Rep.  656.) 


False  Pretenses: 


I 't  i 


Variance  hetireen  indictment  and  charge — Criminal 
Code,  1802,  Sec.  641. 


•■J  ' 


On  a  charge  of  stealing  2,200  bushels  of  beans,  for  which  he  was  committed 
for  trial,  the  evidence  before  the  magistrate  disclosed  that  the  prisoner 
had  obtained  certain  cheques  on  the  false  pretense  that  "  there  were 
2,680  bushels  of  beans"  in  his  warehouse.  At  the  assizes  he  was 
indicted  for  obtaining  the  cheques  on  the  false  pretense  "  that  there  was 
then  a  large  quantity  of  beans,  to  wit,  2,680  bushels,"  in  his  warehouse. 
During  the  progress  of  the  trial,  the  indictment  was  amended  by  strik- 
ing out  the  words  "  a  large  quantity  of  beans,  to  wit,"  and  the  prisoner 
was  convicted  thereon.  Held,  no  such  variation  as  prevented  the 
indictment  being  preferred  for  a  charge,  found  upon  the  facts  or  evi- 
dence disclosed,  vithin  the  meaning  of  Section  641  of  the  Criminal 
Code,  1892.  Held,  also,  that  the  prisoner  not  having  been  misled  or 
prejudiced  by  the  amendment,  it  was  properly  made. 


■iiMijiTj 


REGINA  V.  PATTERSON. 


313 


Statement.  Case  reserved  by  Mr.  Justice  Street,  at  the 
Cbatbaiu  Assizes. 

The  prisoner  was  charged  before  the  poh'ce  magistrate  at 
Chatham,  on  February  17,  1894,  with  stealing  2,200  bushels 
of  beans,  the  property  of  Nathan  II.  Stevens,  and  was  com- 
mitted for  trial  on  that  charge. 

At  the  Spring  Assizes  for  the  County  of  Kent,  held  on  April 
9  1895,  an  indictment  was  preferred  against  the  prisoner,  not 
for  stealing  the  beans,  but  for  obtaining  from  the  prosecutor 
by  false  pretenses  two  cheques,  the  false  ])retenses  alleged 
beino-  "  that  there  was  then  a  large  quantity  of  beans,  to  wit, 
2,680  bushels  of  beans,  the  property  of  the  said  Nathan  II. 
Stevens,  in  the  warehouse  of  the  said  Archibald  Patterson, 
situated  on  Erie  street,  in  the  village  of  llulgetown,  and  that 
two  car  loads  of  beans  that  had  been  sold  by  said  Nathan  H. 
Stevens  were  not  the  property  of  the  said  Nathan  H.  Stevens." 
Before  the  accused  was  given  in  charge  to  the  jury  he  ap- 
pealed, under  Section  641  of  the  Criminal  Code,  1892,  to  the 
presiding  judge  to  quash  the  indictment,  u])on  the  ground  that 
he  had  not  been  committed  for  trial  on  the  charge  for  which 
it  was  preferred,  and  that  it  was  not  for  any  charge  founded 
upon  the  facts  or  evidence  disclosed,  on  the  depositions  taken 
before  the  police  magistrate,  or  otherwise  authorized  in  any  of 
the  modes  by  which  alone,  as  the  section  provides,  it  might 
have  been  permitted  to  be  preferred. 

The  application  to  quash  was  refused,  and  the  trial,  there- 
fore, proceeded,  and  during  its  progress,  against  the  objection 
of  counsel  for  the  accused,  the  indictment  was  amended  by 
striking  out  the  words  ''a  large  quantity  of  beans,  to  wit," 
and  upon  the  indictment,  as  so  amended,  the  accused  was  con- 
victed. 

The  evidence  taken  at  the  preliminary  investigation  before 
the  police  magistrate  formed  part  of  the  case,  and  the  ques- 
tions to  be  determined  were  : 

1.  Were  there  facts  or  evidence  disclosed  on  the  deposi- 
tions taken  before  the  police  magistrate,  upon  which  the 
indictment  could  or  ought  to  have  been  preferred,  under  Sec- 
tion 641  of  the  Criminal  Code,  and  ought  the  accused  to  have 
been  put  upon  his  trial  upon  the  said  indictment,  or  ought  the 
same  to  have  been  quashed  ? 


',y-! 


i  ' 


114 


AMERICAN  CRIMINAL  REPORTS. 


* 


V   m 


2.  Ought  the  indictment  to  have  been  amended  and  the 
trial  proceeded  with,  after  such  amendment,  under  Section  723 
of  the  Criminal  Code  ? 

The  case  was  argued  before  Mkrkditii,  C.  J.,  and  Eose,  J. 
in  the  Common  Pleas  Division,  on  June  1,  181*5. 

Clute,  Q.  C,  for  the  prisoner. 

J.  E.  Cartwright,  Q.  C,  for  the  crown. 

June  20,  1895,  Meredith,  C.  J.  (after  stating  the  facts  as 
above  set  out) : 

A  perusal  of  the  depositions  taken  before  the  ])olice  nia"-is- 
trate  makes  it  abundantly  clear  that  the  facts  or  evidence  (lis- 
closed  on  them  were  sufficient  to  found  a  charge  of  false 
pretenses  against  the  accused.  The  evidence  of  the  prosecu- 
tor, Stevens,  discloses  the  fact  that  the  cheques  which  form  the 
subject  of  the  indictment  were  obtained  upon  the  representa- 
tion of  the  accused  that  he  had,  at  the  time  the  cheques  were 
got  by  him,  2,680  bushels  of  beans  in  the  warehouse  of  the 
accused,  the  property  of  the  prosecutor,  and  tliat  that  rc])re- 
sentation  was  untrue,  and  we  think,  therefore,  that  there  is  no 
doubt  that  an  indictment  might  have  been  preferred  against 
the  accused  for  obtaining  the  cheques  by  means  of  that  false 
pretense,  but  it  was  argued  b}'  counsel  on  his  behalf  that  tlie 
charge  as  originally  laid  in  the  indictment  was  a  dilferent  one 
from  that  disclosed  in  the  depositions,  that  a  charge  of  obtain- 
ing the  cheques  by  the  false  pretense  that  there  was  in  store 
a  large  quantity  of  beans,  to  wit,  2,800  bushels  of  beans,  "was 
a  substantially  different  charge  from  one  where  the  false  pre- 
tense was  alleged  to  be  that  there  was  {sic)  in  store  2,860 
bushels  of  beans." 

It  is  no  doubt  true,  that  upon  an  indictment  charging  the 
false  pretense  in  the  former  of  these  terras  the  words  follow- 
ing the  words  "to  wit"  were  not  required  to  be  proved,  and 
that  the  charge  in  that  case  was,  in  substance,  that  the  false 
pretense  was  that  there  was  then  in  store  a  large  quantity  of 
beans. 

To  give  to  the  enactment  in  question  the  meaning  contended 
for  would,  in  m}'  opinion,  be  to  place  upon  its  language  alto- 
gether too  narrow  and  restricted  a  construction. 

Before  the  adoption  of  the  Criminal  Code,  except  in  cases 


REGINA  V.  PATTERSON. 


315 


to  which  Section  140  of  Criminal  Proceduro  Act  applied,  there 
Avas  no  such  limitation  of  the  right  to  prefer  an  indictment  as 
is  now  contained  in  Section  041  of  the  Code,  but  in  accordance 
with  the  recommendations  of  the  report  of  the  Royal  Commis- 
sioners on  the  English  Draft  Code,  1878,  pp.  32,  33,  the  Par- 
liament of  Canada,  in  codifying  the  criminal  laws  of  the 
Dominion,  extended  the  substance  of  the  provisions  of  Section 
liO  to  the  case  of  all  indictments. 

As  pointed  out  by  the  Royal  Commissioners,  their  recom- 
mendation was  based  upon  what  they  deemed  the  manifest 
injustice  of  permitting  an  indictment  to  be  preferred  to  a 
grand  jury,  sitting  in  secret,  and  without  any  opportunity  to 
the  accused  of  being  heard,  and  a  bill  being  found  and  the 
accused  placed  u])on  trial,  upon  what  might  turn  out  to  be  a 
wholly  unfounded  charge,  without  any  preliminary  investiga- 
tion or  even  notice  of  the  nature  of  the  charge  which  was 
intended  to  be  preferred  against  him. 

Section  616  of  the  Criminal  Code  provides  that  no  count  in 
an  indictment  which  charges  any  false  pretense  shall  be  deemed 
insufficient  if  it  does  not  set  out  in  detail  in  what  the  false 
pretense  consisted,  and  the  law  had  for  many  years  before 
permitted  a  charge  of  false  pretenses  to  be  laid  in  that  way. 

Having  regard  to  that  provision,  and  the  reason  which  led 
to  the  enactment  and  the  evident  objects  of  section  641, 1  am 
of  opinion  that,  inasmuch  as  the  evidence  before  the  police 
magistrate  disclosed  a  case  of  false  pretenses  in  respect  of  the 
2,680  bushels  of  beans,  the  prosecutor  was  entitled  to  prefer 
the  indictment  which  he  did  prefer,  and  that  the  fact  that  the 
false  pretense  was  erroneously  laid  as  being  that  there  was  in 
store  "a  large  quantity  of  beans,  to  wit,  2,680  bushels  of 
beans,"  instead  of  that  there  were  in  store  "  2,680  bushels  of 
beans,"  did  not  form  a  ground  for  quashing  the  indictment  as 
having  been  preferred  without  lawful  authority.  The  accused 
had  notice  of  the  nature  of  the  complaint  which  the  prosecu- 
tor made  against  him,  and  that  it  in  law  amounted  to  a  charge 
of  false  pretenses,  and  the  substance  of  the  charge  was  that  he 
had  obtained  the  prosecutor's  money  by  falsely  representing 
that  he  had  in  store  "  2,680  bushels  of  beans."  He  must  be 
taken,  I  think,  to  have  known  that  under  the  ample  powers  of 
amendment  which  the  courts  now  possess  in  criminal  matters, 
the  charge  which  was,  in  fact,  made  against  him  would  be 


n  ! 


m 


\:     i    .' 


a  11: 


^f| :! 

m 

m 

11 

il' 

11 

i 

*?  * 

■i  a 


f  ''' 


316 


AMERICAN  CRIMINAL  REPORTS. 


investigated,  and  that  any  amendment  of  the  record  necessary 
to  enable  that  to  be  done,  could  and  would  be  made. 

It  is  clear,  it  seems  to  me,  that  had  the  indictment  charo-ed 
that  the  cheques  were  obtained  by  false  pretenses  without 
alleging  in  what  the  false  pretense  consisted,  it  would  have 
been  fully  authorized  by  section  611.  Why,  then,  should  the 
addition  of  the  words  unnecessarily  setting  out  in  what  the 
false  pretenses  consisted  render  the  indictment  liable  to  be 
quashed,  as  having  been  preferred  contrary  to  the  provisions 
of  the  section  ?  I  am  of  opinion  that  it  did  not,  and  that  it  is 
enough  that  the  facts  or  evidence  disclosed  on  the  depositions 
were  sufficient  to  found  a  charge  of  false  pretenses  in  respect 
of  the  same  subject-matter,  which  Avas  the  foundation  of  the 
charge  of  stealing  upon  which  the  accused  was  committed  for 
trial. 

Begina  v.  Broad,  14  C.  P.  168,  though  the  point  which 
arose  there  was  not  precisely  i  >  same  as  that  with  which  we 
have  to  deal,  supports  the  view  which  I  have  endeavoured  to 
express  as  to  the  proper  construction  of  such  an  enactment  as 
that  which  I  am  considering.  See,  also,  section  611  of  the 
Criminal  Code. 

I  am  of  opinion,  therefore,  that  the  first  question  must  be 
answered  in  the  affirmative. 

"With  regard  to  the  second  question,  it  must  be  taken  that 
the  learned  judge  at  the  trial  was  of  opinion  that  the  accused 
was  not  misled  or  prejudiced  in  his  defense  by  the  variance 
between  the  evidence  given  and  the  charge  in  the  indictment, 
and  that  question  is  not  now  open;  that  being  so,  the  learned 
judge  was,  I  think,  fully  warranted  in  making  the  amendment 
which  was  allowed,  and  the  trial  was  properly  proceeded  with 
after  that  amendment.     Section  723. 

If  it  were,  however,  intended  that  the  case  should  raise  the 
question  whether  the  accused  was  misled  or  prejudiced  in  his 
defense  by  the  variance,  upon  the  material  before  us,  I  am  of 
opinion  that  he  was  not,  and  that  he  ought  to  have  been  pre- 
pared to  meet  the  charge  of  false  pretenses  which  formed  the 
subject  of  the  inquiry  before  the  police  magistrate,  and  which 
he  had,  probably,  good  reason  for  thinking  was  intended  to  be 
covered  by  the  language  used  in  the  indictment,  the  legal 
effect  of  which  the  framer  of  the  indictment  may  not  have 
fully  apprehended  w^hen  he  drew  it. 


REOINA  V.  PArrERSON. 


317 


I  would  answer  the  second  question  also  in  the  afllrmative. 
In  the  result  the  conviction  is  affirmed. 


Ro&E,  J. — If  the  indictment  had  been  framed  without  setting 
out  in  detail  in  what  the  false  pretense  consisted,  the  objec- 
tion here  urged  could  not  have  been  raised.  Nor,  do  I  think  it 
would  in  anywise  have  been  open,  had  there  been  served 
under  such  a  count  particulars  in  the  words  appearing  in  the 
bill  found  by  the  grand  jury.  Then  may  not  the  indictment 
be  treated  as  one  charging  a  false  pretense  and  giving  partic- 
ulars of  such  pretense  ?  The  code  provides  for  amending  ])ar- 
ticulars,  and  if  the  court  here  had  not  set  out  in  detail  the 
false  pretense,  but  particulars  had  been  served,  then  such  count 
being  sufficient,  an  amendment  of  the  particulars  under  sec- 
tion 723  would  not  have  caused  any  vice  to  appear  in  the  pro- 
ceedings. Equally,  it  seems  to  me,  is  the  amendment  of  the 
particulars  in  the  count  permissible  and  unobjectionable.  The 
count,  as  amended,  was  sustained  by  evidence,  both  on  the 
preliminary  hearing  and  at  the  trial,  and  it  would  be  a  mis- 
fortune if  on  an  objection,  purely  technical,  it  was  necessary  to 
interfere. 

I  agree  that  the  question  must  be  answered  for  the  crown. 

Note.— Insintchons  need  not  cover  tvhole  issue. —  It  is  only  necessary 
that  the  instructions  should  cover  the  issue  actually  presented  in  the  ciuse, 
and,  where  the  defendant  in  a  criminal  action  testifies  in  his  own  behalf, 
the  court  may  assume  that  the  facts  proven  by  the  witnesses  for  the  State 
and  admitted  by  the  defendant  are  true,  and  a  failure  on  the  part  of  the 
court  to  state  the  law  fully  with  reference  to  those  matters  that  are  uncon- 
tested is  not  material  error.    State  v.  Davis,  56  Kan,  54. 

Gift  enterprises — What  constitute. — The  statute  of  Massachusetts,  mak- 
ing it  a  penal  offense  to  sell  property  on  a  representation  that  anything 
other  than  what  is  spacifically  stated  to  be  the  subject  of  sale  is  to  be  de- 
livered, does  not  prohibit  tlie  sale  of  tobacco  under  a  promise  to  give  a  pho- 
tograph to  each  purchaser  of  a  package,  though  a  purchaser  is  allowed  to 
select  his  photograph  from  among  a  number.  Com.  v.  Emerson,  150  Miias. 
146. 

ho^y^ictionsmustbe  Imsed  on  evidence. — On  the  trial  of  an  indictment 
alleging  that  the  accused  forged  a  certain  order,  purporting  to  be  signed 
by  A,  and  addressed  to  B,  with  intent  to  defraud  A,  and  uttered  tlio 
same  with  intent  to  defraud  B,  it  was  error  to  charge  the  jury  that,  if  they 
believed  from  the  evidence  the  accused  "  did  pass  this  order  with  intent  to 
defraud"  either  A  or  B,  it  would  be  their  duty  to  find  him  guilty.  P/ti7- 
lips  V.  State,  96  Ga.  293. 

Indictment— Several  distinct  acts, — Where,  under  a  statute,  several 
distinct  acts  connected  with  the  same  general  offense,  and  subject  to  the 


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318 


AMERICAN  CRIMINAL  REPORTS. 


'i 


■  lino  ponaltiofl,  aro  piinislmblo  seprirntoly  nnd  natliHtinot  crinios  when  foin- 
inittt'd  by  (liffen'nt  ptTHonHornt  dHr»'rt'nttinu'H,  tlicy  miiy,  when  coniinidid 
by  tlu'  Maine  person  lit  tlio  Haine  time,  be?  conMiilored  uh  ropri'Hontiiij,'  steps 
31'  Hta^t's  in  tlio  same  ofTunHu,  and  may  be  cuinbitu'tl  in  tliu  Hanio  count  of 
an  indictincnt  or  information,  and  treated  aa  a  single  viulatiuii  of  law. 
State  V.  Meade,  50  Kua.  600. 


(Crown  Cases  Reserved.) 

Reg.  v.  Silvkrlock. 
(18  Cox's  Criminal  Cases,  104.) 

Indictment:  False  pretenses — Necessary  averments — I*eraon  to  whom  pre- 
tense made — Particularity — Evidence— Adn^issibility — Skilled  wifnvsH— 
Expert  in  handwriting— Exjicrience  acquired  otheruiise  than  in  profcu- 
sion  or  business. 

1.  An  indictment  which  alleges  that  a  prisoner  by  means  of  an  advortiae- 

ment  in  a  newspaper  made  a  false  pretense  to  all  Her  MujestyV  8iil)- 
jects,  by  means  of  whicli  a  person  named  in  tho  indictment  was  in- 
duced to  part  with  money  in  the  belief  that  tlie  pretense  was  tiiir, 
sufficiently  alleges  that  the  false  pretense  was  made  to  the  person  ho 
named. 

2.  In  order  to  render  the  evidence  of  a  witness  admissible  on  the  ground 

that  he  is  skilled  in  the  matter  U{K)n  which  he  is  called  to  give  evidence, 
it  is  not  necessary  that  such  person  should  be  siiilled  in  such  matter  l)y 
reason  of  his  profession  or  trade.  It  is  sufficient  if  the  court  is  satisfied 
that  he  has  in  some  way  or  other  gained  such  experience  in  the  matter 
as  to  entitle  his  evidence  to  credit. 

Before  Lord  Russell,  C.  J.,  Mathew,  Day,  Williams  and 
Kennedy,  JJ. 

Case  stated  by  the  chairman  of  the  Quarter  Sessions  for  the 

County  of  Worcester. 

The  prisoner  was  tried  on  the  following  indictment : 

Worcestershire,  to  wit :    The  jurors  of  our  Lady  the  Queen 

upon  their  oath  present  that  George  Silverlock,  on  the  twen- 

'  ty-fourth  day  of  May,  in  the  year  of  our  Lord,  one  thousand 

eight  hundred  and  ninety-four,  unlawfully,  knowingly,  and 

designedl}'^  did  falsely  pr-^tend  to  one  Rosa  Alice  Coates  that 

the  name  of  him,  the  said  George  Silverlock,  was  then  Charles 

Brown;  that  the  said  Charles  Brown  then  resided  and  carried 

on  business  at  No.  75  Fetter-Lane,  High  Hoi  born,  London; 


REG.  V.  SILVERLOCK. 


810 


that  the  said  Charles  Brown  then  had  a  branch  drapery  estab- 
lishment at  Oxford,  where  two  other  servants  were  kept,  and 
then  rodiiired  a  steady,  reliable,  and  econonncal  housekeei)er 
for  the  said  branch  establishment,  to  look  after  the  comfoi'ts, 
etc.  of  twelve  young  ladies  and  gentlemen  there;  that  the 
said  Cliarles  Hrown  was  then  able  and  Avilling  to  engage  the 
said  Rosa  Alice  Coates  as  such  housekeeper  as  aforesaid,  and 
also  to  ;'ay  to  the  said  Ilosa  Alice  Coates  the  sum  of  thirty- 
five  pounds  per  annum  as  such  housekeeper  as  aforesaid;  that 
one  John  Lewis  formerly  carried  on  business  at  No.  (il  ('han- 
closstreet.  Strand,  and  had  then  removed  to  and  carried  on 
business  at  No.  23  Maiden-Lane,  Strand,  London,  and  was  then 
the  solicitor  of  the  said  Charles  Brown,  and  that  the  said 
Charles  Brown  then  bona  fide  required  the  said  Kosa  Alice 
Coates  to  deposit  with  the  said  John  Lewis,  as  such  solicitor 
as  aforesaid,  the  sum  of  five  pounds  as  a  security  and  by  way 
of  guarantee  for  the  honesty  of  the  said  Rosa  Alice  Coates  as 
such  housekeeper  as  aforesaid,  by  means  of  which  said  false 
pretenses  the  said  George  Silverlock  did  then  unlawfully  ob- 
tain from  the  said  Rosa  Alice  Coates  a  certain  valuable  secu- 
rity, to  wit,  an  order  for  the  payment  of  money,  commonly 
called  a  banker's  cheque,  and  of  the  value  of  five  pounds,  with 
intent  to  defraud,  Avhereas,  in  truth  and  in  fact,  the  name  of 
iiiin,  the  said  George  Silverlock,  was  not  then  Charles  Brown; 
and.  whereas,  in  truth  and  in  fact,  the  said  Charles  Brown  did 
not  then  reside  and  carry  on  business  at  No.  75  Fetter-Lane, 
aforesaid,  and  had  not  then  a  branch  drapery  establishment  at 
Oxford  where  two  other  servants  were  kept,  and  did  not  then 
require  a  good,  stead}"-,  reliable,  and  economical  housekeeper 
for  the  said  branch  establishment  to  look  after  the  comforts, 
etc.,  of  twelve  3'oung  ladies  and  gentlemen  there. 

And  whereas,  in  truth  and  in  fact,  the  said  Charles  Brown 
was  not  then  able  and  willing  to  engage  the  said  Rosa  Alice 
Coates  as  such  housekeeper  as  aforesaid,  or  to  pay  the  said  Rosa 
Alice  Coates  the  sum  of  thirty-five  pounds  per  annum  wages 
as  such  housekeeper  as  aforesaid;  and  Avhereas,  in  truth  and 
in  fact,  the  said  John  Lewis  did  not  formerly  carry  on  busi- 
ness at  No.  61  Chandos-street,  Strand,  aforesaid,  and  had  not 
then  removed  to  and  did  not  then  carry  on  business  at  No.  23 
Maiden-Lane,  Strand,  aforesaid,  and  was  not  then  the  solicitor 
of  the  said  Charles  Brown;  and  whereas,  in  truth  and  in  fact, 


I 


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^1 


320 


AMERICAN  CRIMINAL  REPORTS. 


the  said  Charles  Brown  did  not  then  honafide  require  the  said 
Rosa  Alice  Coates  to  deposit  with  the  said  John  Lewis,  as  such 
solicitor  as  aforesaid,  the  sum  of  five  pounds,  as  security  and 
by  way  of  guarantee  for  the  honesty  of  the  said  Rosa  Alice 
Coates,  as  such  housekeeper  as  aforesaid,  as  he,  the  said  George 
Silverlock,  well  knew  at  the  time  when  he  did  so  falsely  pre- 
tend as  aforesaid,  against  the  form  of  the  statute  in  such  case 
made  and  provided  and  against  the  peace  of  our  said  Lady  the 
Queen,  her  crown  and  dignity. 

Second  count.  And  the  jurors  aforesaid,  upon  their  oath 
aforesaid,  do  further  present  that  the  said  George  Silverlock, 
on  the  17th  day  of  May,  in  the  year  aforesaid,  by  inserting  and 
causing  to  be  inserted  in  a  certain  newspaper,  called  The 
Christian  World,  a  fraudulent  advertisement  in  the  words  and 
figures  following — that  is  to  say,  "  Housekeeper  wanted,  for 
branch  business  establishment  in  Midlands;  one  from  country 
preferred.  Address,  'S.  C.,'  Christian  World  Office"— did 
falsely  pretend  to  the  subjects  of  Her  Majesty  the  Queen,  that 
he,  the  said  George  Silverlock,  then  required  a  housekeeper 
for  a  branch  business  establishment  in  the  Midlands,  by  means 
of  which  said  last  mentioned  false  pretense,  the  said  George 
Silverlock  did  then  unlawfully  obtain  from  the  said  Rosa  Alice 
Coates  a  certain  valuable  security,  to  wit,  an  order  for  the  pay- 
ment of  money,  commonly  called  a  banker's  cheque,  and  of  the 
value  of  five  pounds,  with  intent  to  defraud,  whereas,  in  truth 
and  in  fact,  he,  the  said  George  Silverlock,  did  not  then  require 
a  housekeeper  for  the  branch  business  establishment  in  the 
Midlands,  as  he,  the  said  George  Silverlock,  well  knew  at  the 
time  when  he  did  so  falsely  pretend  as  last  aforesaid,  against  the 
form  of  the  statute  in  such  case  made  and  provided,  and  against 
the  peace  of  our  said  Lady  the  Queen,  her  crown  and  dignity. 

Before  the  prisoner  pleaded,  his  counsel  applied  to  have  the 
second  count  of  the  indictment  quashed  on  the  ground  that  it 
was  not  stated  therein  that  the  false  pretense  was  made  to 
any  definite  person,  but  to  all  the  subjects  of  Her  Majesty  the 
Queen,  and  that,  therefore,  it  was  bad  in  law,  on  the  authority 
of  Reg.  V.  Sowerhy  (17  Cox  C.  C.  767;  63  L.  J.  136,  M.  C;  (1894) 
2  Q.  B.  173).  The  prosecution  contended  that  in  the  offense 
of  false  pretenses  by  advertisement  no  specific  person  could  be 
named,  and  they  relied  on  the  cases  of  Heg.  v.  Cooper  (13  Cox 
C.  C.  187;  33  L.  T.  Rep.  N.  S.  754;  45  L.  J.  15,  M.  C;  1  Q.  13. 


REG  V.  SILVERLOCK. 


321 


Div.  19),  and  Bef/.  v.  Sargent  (39  J.  P.  760),  and  further  con- 
tended that,  even  if  the  second  count  was  bad  in  law,  the  first 
count  would  still  be  good  in  law;  but,  as  the  chairman  did  not 
consider  the  point  had  been  taken  in  Heg.  v.  Sowerhy,  he  over- 
ruled the  objection  subject  to  the  opinion  of  this  court. 

In  the  course  of  the  trial  it  was  proposed  to  prove  a  certain 
draft  advertisement  of  "  S.  C,"  and  certain  letters  from  Charles 
Brown  and  John  Lewis,  alleged  to  be  in  the  prisoner's  hand- 
writing, by  comparison  of  the  handwriting  in  such  draft  adver- 
tisement and  letters  with  that  of  admitted  handwriting  of 
the  prisoner;  and  the  solicitor  for  the  prosecution  was  called 
as  an  expert  for  this  purpose.  Counsel  for  the  prisoner 
objected  that  the  solicitor  was  not  an  expert,  and  could  not 
givo  evidence  as  to  his  opinion,  and  cited  the  case  of  Reg.  v. 
Harvey  (11  Cox,  546),  and  Blackburn,  J.'s,  dictum  therein, 
that  a  policeman  was  not  an  expert.  The  solicitor  himself 
said  that  he  had,  quite  apart  from  his  professional  work,  for 
some  years — that  is,  since  1884 — given  considerable  attention 
and  study  to  handwriting,  and  especially  to  old  parish  registers 
and  wills.  He  said  he  had  on  severil  occasions  professionally 
compared  evidence  in  handwriting,  b'jt  said  that  he  had  never 
before  given  evidence  as  to  handwriting.  He  stated  that  he 
had  formed  an  opinion  that  the  prisoner  was  guilty  before 
he  began  to  compare  the  handwriting.  I  overruled  the  objec- 
tion and  admitted  the  evidence  on  the  ground  that  all  the 
objections  went  to  the  weight,  not  to  the  admissibility,  of  the 
evidence,  and  that  there  was  nothing  in  the  Act  28  and  29 
Vict.  C.  18,  which  makes  it  necessary  to  have  the  evidence  of 
handwriting  given  by  a  professional  expert,  and  that  any  one 
who  has  studied  handwriting  is  competent  to  give  evidence, 
the  weight  to  be  given  to  such  evidence  being  a  matter  for 
the  jury. 

The  jury  convicted  the  prisoner  and  I,  at  the  request  of  the 
prisoner's  counsel,  agreed  to  state  this  case  for  the  opinion  of 
the  High  Court  on  the  following  questions  of  law:  (1) 
Whether  an  indictment  for  false  pretenses  by  advertisement 
must  allege  a  specific  person  to  whom  the  false  pretense  was 
made,  or  will  an  indictment  for  false  pretenses  by  advertise- 
ment alleging  a  false  pretense  to  all  the  Queen's  subjects  be 
good  in  law?  (2)  Whether  it  is  necessary,  in  the  case  of 
proving  handwriting  by  comparison,  for  the  person  who  draws 
m 


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i|:f5. 


S  fiJii    .ill 


322 


AMERICAN  CRIMINAL  REPORTS. 


attention  to  the  points  of  resemblance  to  bo  a  professional 
expert  or  a  person  whose  ordinary  busimss  leads  him  to  have 
special  experience  in  questions  of  handwriting,  or  will  the  evi- 
dence of  any  person  who  has,  or  states  he  has,  for  some  years 
studied  handwriting  be  admissible  for  that  purpose  ?  If  the 
court  should  be  of  opinion  that  the  first  part  of  the  first  ques- 
tion should  be  answered  in  the  affirmative  and  the  second  in 
the  negative,  and  the  first  part  of  the  second  question  in  tlie 
negative  and  the  last  part  in  the  affirmative,  the  conviction 
will  stand;  if  not,  the  conviction  will  be  quashed.  The  defend- 
ant was  sentenced  to  twelve  months  imprisonment  with  hard 
labor,  but  the  Court  directed  him  to  be  released  on  bail  in  his 
own  recognizance  of  40/.,  and  two  sureties  of  20/.  each.  As 
he  was  unable  to  find  bail  he  is  now  in  prison. 


.;  t\''  -  ■.•! 


.i 


Hi 


Marchant,  on  behalf  of  the  prisoner,  submitted,  first,  that 
the  indictment  was  bad,  inasmuch  as  it  omitted  to  allege  with 
sufficient  particularity  the  person  to  whom  the  false  pretense 
was  made;  and,  secondly,  that  the  evidence  as  to  the  hand- 
writing was  not  that  of  a  professional  expert,  and  had  therefore 
been  improperly  admitted.  In  support  of  the  first  point,  he 
relied  upon  lieff.  v.  Sowerhy  {till  stip.),  as  showing  that  the  omis- 
sion of  an  allegation  of  the  jierson  to  whom  the  false  pretense 
was  made  was  fatal  to  the  indictment,  and  that  an  allegation 
that  the  pretense  was  made  to  all  Her  Majest3''s  liege  subjects 
was  practically  the  same  as  if  no  allegation  at  all  had  been 
made,  owing  to  its  generality.  lie  referred  to  the  precedent  in 
Archbold's  Criminal  Pleadings,  10th  ed.,  p.  536,  which  is,  "did 
falsely  pretend  to  one  J.  N.,"  and  submitted  that  the  allega- 
tion that  by  means  of  the  false  pretense  money  was  obtained 
from  a  particular  person  did  not  supply  the  omission  to  allege 
that  the  false  pretense  was  made  to  that  person,  it  being  con- 
sistent with  the  averments  in  the  indictment  that  the  pretense 
had  been  made  to  one  person  and  the  money  obtained  from 
another.  In  support  of  the  second  point  he  submitted  that 
the  witness  who  gave  evidence  as  to  the  handwriting  was 
merely  an  amateur  and  not  a  professional  expert;  and  that  it 
was  laid  down  in  the  authorities  that  a  person  to  be  a  skilled 
witness  must  be  expert  by  virtue  of  his  trade,  profession  and 
learning.  The  Statute  28  and  29  Vict.,  c.  18,  s.  8,  merely 
enabled  a  comparison  to  be  made  of  ha.id writings,  but  did  not 


REG.  V.  SILVERLOCK. 


323 


alter  the  mode  in  which  the  comparison  ^vas  to  be  made.  In 
Tavlor  on  Evidence,  8th  ed.,  s.  1870,  p.  1585,  it  is  stated  that, 
under  this  enactment,  the  comparison  may  be  made  by  wit- 
nesses acquainted  with  the  handwriting,  by  witnesses  skilled  in 
deciphering  handwriting,  or  without  the  intervention  of  wit- 
nesses at  all,  by  the  jury  themselves,  or,  if  there  is  no  jury, 
by  the  court;  and  in  Beg.  v.  Ilarmy  (11  Cox  C.  C.  546),  upon 
the  authority  of  Reg.  v.  Wilhain  and  Ryan  (9  Cox  C.  C.  448, 
Irish),  a  policeman's  evidence  as  to  handwriting  was  rejected. 
[Lord  Russell,  P.  J. — It  is  to  be  observed  that  in  Reg.  v.  Harvey 
Blackburn,  J.,  merely  pointed  out  that  the  policeman  was 
engaged  in  the  case.]  In  Bristow  v.  Sequeville  (5  Ex.  275;  19 
L.  J.  289  Ex.),  it  was  held  that  a  witness  whose  knowledge 
of  the  law  of  a  foreign  country  was  derived  solely  from  study 
at  a  university  could  not  give  evidence  as  a  skilled  witness. 

In  Rowley  v.  London,  and  NortJi  Western  Railway  Com- 
pany (L  Rep.  8  Ex.  221;  29  L.  T.  Rep.  180;  42  L.  J.  153,  Ex.) 
Blackburn,  J.,  said :  "  It  was  objected  that  the  witness  was 
not  an  actuary,  but  only  an  accountant;  but  as  he  gave  evi- 
dence that  he  was  experienced  in  the  business  of  life  insur- 
rance  we  think  his  evidence  was  admissible."  He  also 
cited  the  Sussex  Peerage  case  (11  CI.  &  F.  85)  as  to  who 
CDuld  give  evidence  as  an  expert  as  to  foreign  law;  and  the 
Tracy  Peerage  case  (10  CI.  &  F.  154)  as  to  the  little  weight 
attached  even  to  the  evidence  of  witnesses  as  to  entries  in  an 
old  prayer-book  whose  occupations  for  a  long  time  had  made 
them  so  conversant  with  manuscripts  of  different  ages,  that 
they  could  take  upon  themselves  to  name  the  period  in  which 
a  manuscri])t  was  written.  The  principle  upon  which  expert 
evidence  is  admissible  in  stated  in  Best  on  Evidence,  at  p.  464. 


f  I 


■i. 


Yachll,  on  behalf  of  tlie  prosecution,  was  not  called  upon 
in  answer  to  the  question  as  to  the  admissibility  of  the  evi- 
dence, and,  in  support  of  the  indictment,  submitted  that  alle- 
gation in  the  first  count  set  out  correctly  the  facts  at  the  time 
the  false  pretense  was  made,  it  having  been  advertised  in  a 
paper,  and  therefore  published  to  every  one.  The  case  of  Reg. 
V.  Sowerhy  {nbi  sup.)  is  merely  an  authority  that  there  must 
be  an  allegation  that  the  pretense  was  made  to  some  one,  oth- 
erwise there  is  no  allegation  of  a  false  pretense  at  all,  and  it 
is  not  an  authority  that  the  allegation  must  be  that  the  pre- 


fill?  ^!'  ^ 


HI!  ■';*'<■ 


mmi}-'- 


32i 


AMERICAN  CRIMINAL  REPORTS. 


r  li 


tense  was  made  to  the  person  defrauded.  He  stated,  in 
answer  to  the  court,  that  the  second  count  Avas  inserted  in 
the  indictment  because  the  indictment  in  liifj.  v.  Cooper  (33 
L.  T.  Rep.  754;  1  Q.  V>.  Div.  19;  13  Cox  C.  C.  123;  45  L.  J. 
15,  M.  C),  contained  a  similar  count  and  no  objection  was 
made  to  it. 

Lord  Russell,  C.  J. — This  case  comes  before  the  Court  under 
these  circumstances :  The  prisoner  was,  on  the  18th  day  of 
June,  1S94,  tried  at  quarter  sessions  upon  an  indictment  Avliicli 
contained  two  counts.  The  first  count  stated,  and  stated  in 
an  unobjectionable  way,  certain  false  pretenses  as  having  been 
made  to  one  Rosa  Alice  Coates,  upon  the  strength  of  wliich 
the  prisoner  obtained  from  her  a  cheque  for  the  sum  of  5/. 
The  second  count,  which  is  the  one  we  are  here  consideiino-. 
alleged  that  the  prisoner  had  inserted  an  advertisement  in  a 
paper  called  the  Christian  World,  which  advertisement  ran  thus: 
"  Housekeeper  wanted  for  branch  business  establishment  in 
the  Midlands.  One  from  country  preferred. — Address  S.  C, 
Christian  AVorld  Otfice."  The  count  then  proceeds  timt  by 
means  of  that  advertisement  the  prisoner  did  falsely  pretend 
to  all  the  Queen's  subjects,  that  is,  to  all  to  whom  knowledge 
of  the  advertisement  came,  that  he  then  required  a  housekeeper 
for  a  branch  establishment  in  the  Midlands,  and  thereby  ob- 
tained from  Rosa  Alice  Coates  a  cheque  for  5^.  At  the  trial, 
objection  was  taken  to  the  second  count  of  the  indictment;  but 
no  objection  was  or  could  be  taken  to  the  first  count,  and  my 
surprise  begins  at  this  point,  that  the  prosecuting  counsel,  as 
the  facts  applied  to  both  the  counts  did  not  ask  the  court  to 
take  the  verdict  of  the  jury  upon  each  of  the  counts.  This 
would  have  been  the  ordinary  course,  and  if  it  had  been  taken 
this  case  could  not  have  come  before  us.  That  course  was  not, 
however,  taken,  and  we  have  to  decide  the  question  whether 
the  second  count  is  a  good  one.  !Now,  there  is  no  doubt  as  to 
what  constitutes  the  essentials  of  the  offense  charged. 

There  must  be  a  false  pretense  made,  it  must  be  made  to  a 
definite  person,  and  it  must  be  proved  that  such  person  upon 
the  strength  of  that  false  pretense,  parted  with  his  or  her 
money  or  goods.  Inasmuch,  then,  as  these  are  the  essential 
ingredients  of  the  offense,  they  must  be  stated  in  the  indict- 
ment which  charges  the  offense.    The  question  here  is,  does 


REG.  V.  SILVERLOCK. 


325 


this  count,  or  does  it  not,  fulfil  those  conditions  ?  Upon  the 
whole,  I  have  arrived  at  the  conclusion  that  it  does  sufficiently 
state  those  essential  conditions.  In  the  first  place,  the  adver- 
tisement is  addressed  to  all  to  whom  knowledge  of  it  may 
come;  and  if  a  particular  person,  seeing  that  advertisement  or 
hearing  of  it,  acts  upon  it  and  goes  to  the  person  who  caused 
it  to  be  inserted,  and  on  the  faith  of  it  parts  with  his  money 
or  goods,  it  becomes  a  false  pretense  addressed  to  that  particu- 
lar person,  who  is  one  of  the  class  of  ])ersons  it  was  intended  to 
act  upon.  Now,  does  not  that  sufficiently  appear  here?  I 
think  it  does;  it  begins  by  stating  that  the  prisoner  inserted  the 
advertisement,  and  thereby  made  a  false  pretense,  and  it 
then  proceeds  in  these  words,  which  are  the  important  words 
in  this  averment,  "  by  means  of  which  he  obtained  from  Kosa 
Alice  Coates  a  cheque  for  51.  It  therefore  does  satisfy  the 
requirements  by  stating  the  necessary  essentials  to  prove  an 
obtaining  money  by  false  pretenses,  though  it  does  so  loosely 
and  anything  but  clearly.  The  case  of  lieg.  v.  ^owerhy  (vM 
8up.\  to  which  reference  has  been  made,  we  should  of  course 
regard  as  a  binding  authority;  but  when  it  comes  to  be  looked 
at  it  is  really  no  authority  in  favor  of  the  contention  based 
upon  it,  because  there  were  two  important  essentials  which 
were  wanting.  First,  there  was  no  allegation  that  the  false 
pretense  was  made  to  anyone;  and,  secondly  there  was  no  alle- 
gation of  the  person  from  whom  the  money  was  obtained.  It 
is  to  be  observed,  therefore,  that  the  indictment  there  was 
wanting  in  that  it  did  not  state  to  whom  the  false  pretense 
had  been  made,  whereas  here  the  false  pretense  is  alleged  to 
be  made  to  all  the  world,  and  the  person  to  whose  knowledge 
the  advertisement  came,  and  who  acted  upon  it,  would  come 
within  that  class  of  persons. 

The  indictment  in  that  case  was  further  wanting  in  that 
which  is  alleged  in  the  present  indictment,  because  it  omits 
the  material  allegation  of  the  person  from  whom  the  money 
was  obtained  by  means  of  the  false  pretense.  The  case  of 
Re(j.  V.  Soioerht/  decides  no  more  than  this,  that  without  those 
two  necessary  allegations  the  court  could  not,  after  verdict, 
supply  the  omissions.  I  therefore  come  to  the  conclusion 
that  the  second  count  in  the  present  indictment  is  good.  As 
regards  the  second  question,  concerning  the  proof  of  the  hand- 
writing, it  is  quite  true  that  this  is  one  of  that  class  of  cases 


1 1... 


826 


AMERICAN  CRIMINAL  REPORTS. 


in  which,  if  a  person  who  is  called  to  give  evidence  professes 
to  be  an  exjiert,  he  must  be  skilled;  but  I  can  not  assent  that 
he  must  have  become  peritus  in  the  way  of  his  business,  or  in 
any  particular  way.  The  question  is,  is  he  peritus  ?  If  it  is 
attempted  to  call  a  witness  who  is  not  skilled,  the  judge  ^vould 
point  out  that  his  evidence  ought  to  be  disregarded;  but  I 
know  of  no  case  which  requires,  as  contended,  that  a  man  who 
is  skilled  in  the  matter,  a  man  who  from  past  experience  is 
fitted  to  speak  on  a  question  of  experience,  is  to  be  excluded 
as  a  competent  witness  merely  because  he  has  not  gained  that 
experience  in  the  way  of  his  business.  I  say  that  generally. 
But  in  this  particular  case  the  witness  was  peritus — in  the 
way  of  his  business.  The  witness  said  he  had  for  some  years 
past  given  considerable  attention  and  study  to  handwritings, 
and  especially  to  old  parish  registers  and  wills.  Once  it  is 
determined — and  that  is  the  only  point  we  have  to  determine 
— that  the  evidence  was  admissible,  the  question  of  what 
weight  was  to  be  given  to  it  was  for  the  jury,  according  as 
they  believed  him  to  be  peritus  in  the  matter  with  reference 
to  which  he  was  giving  evidence.  As  regards  the  two  cases 
cited,  I  do  not  regard  either  of  them  as  authorities  for  the 
purpose  for  which  they  were  cited.  They  amount  to  no  more 
than  this,  that  in  each  case  the  witness  was  a  policeman,  and 
the  judge  thought  that  under  the  circumstances  of  that  case, 
the  evidence  was  not  admissible.  Having  arrived  at  the  con- 
clusion that  the  count  was  good  and  the  evidence  admissible, 
I  am  of  opinion  that  the  conviction  must  stand. 

Mathew,  J.  I  am  of  the  same  opinion.  The  first  question, 
as  to  the  form  of  the  count,  is  the  only  one  which  appears  to 
me  to  raise  any  difficulty;  and  that  difficulty  could  have  been 
avoided  if  the  ordinary  course  had  been  followed  of  taking 
the  verdict  of  the  jury  upon  each  count.  It  is  very  important 
tliat  that  circumstance  should  be  borne  in  mind;  because,  here 
we  are  obliged  to  go  back  and  apply  the  old  law  as  it  was  in 
the  time  of  Meeson  and  Welsbey.  It  is  not  necessary  to  go 
through  the  elements  essential  to  constitute  the  offense  of 
false  pretenses;  they  are  familiar  to  every  lawyer.  A  very 
excellent  description  of  what  is  necessary  in  an  indictment  for 
obtaining  money  by  false  pretenses  will  be  found  in  the  judg- 
ment of  the  present  Master  of  the  KoUs  in  Reg.  v.  Aspinall 


REG.  V.  SILVERLOCK, 


327 


(2  Q.  B.  Div.  48),  where  he  says  that,  "  To  support  a  charge 
of  obtaining  money  by  false  pretenses,  it  is  necessary  to  show, 
and  therefore  to  allege,  that  a  prisoner  with  a  wicked  and 
criminal  mind,  stated  something  which,  if  true,  would  be  an 
existing  fact;  that  he  did  so  with  intent  to  procure  the  posses- 
sion of  money,  etc.;  that  he  knew  his  statement  was — that  is 
to  say,  that  so  far  as  his  mind  was  concerned,  he  intended 
tiiat  his  statement  should  be — false;  that  by  the  statement  he 
did  so  act  on  the  mind  of  the  prosecutor  as  that  he  did  there- 
by obtain  money;  or,  that  the  statement  was  in  fact  untrue,  in 
the  sense  of  being  incorrect."  Now,  if  we  take  this  count,  it 
is  clear  that  it  offends  against  the  old  rules  applicable  to  such 
matters.  But  those  rules  are  subject  to  an  extremeh'  important 
qualification,  namely,  that  after  verdict,  though  you  may  not 
supply  an  absent  averment,  you  may  treat  another  averment 
which  is  there  as  supplying  the  omission,  and  we  are  there- 
fore entitled  to  point  to  the  fact  that  the  jury  had  all  the  facts 
on  the  first  count  brought  to  their  minds.  The  rule  is  dis- 
cussed in  Jieg.  v.  Asjpinall  (uhi  sup.),  for  the  same  learned 
judge  says : 

"  There  is  another  rule  with  regard  to  pleading  which  must 
be  enunciated,  the  rule  with  regard  to  the  effect  to  be  given 
to  pleadings  after  verdict.  It  is  thus  stated  in  Ileyman  v.  The 
Queen.  (L.  Kep.  8, 2  Q.  B.  102) :  *  Where  an  averment,  which  is 
necessary  for  the  support  of  the  pleading,  is  imperfectly 
stated,  and  the  verdict  on  an  issue  involving  that  averment  is 
found,  if  it  appears  to  the  court  after  verdict  that  the  verdict 
could  not  have  been  found  on  this  issue  without  proof  of  this 
averment,  then,  after  verdict,  the  defective  averment,  which 
might  have  been  bad  on  demurrer,  is  cured  by  the  verdict.' 
Upon  this  it  should  be  observed  that  the  averment  spoken  of 
is  *an  averment  imperfectly  stated,'  i.  <?.,  an  averment  which 
is  stated,  but  which  is  imperfectly  stated.  The  rule  is  not 
applicable  to  the  case  of  the  total  omission  of  an  essential 
averment."  That  appears  to  be  distinctly  applicable  to  this, 
and  that  a,ndi  Hamilton  v.  The  Queen  (9  Q.  B.  271),  dispose  of 
this  case.  The  distinction  between  this  case  and  Hcg.  v. 
Sowerby  is,  that  in  that  case  there  were  absent  necessary  aver- 
ments which  could  not  be  supplied  under  the  rules  to  which  I 
have  referred.  What  weighed  upon  some  members  of  the 
court  was  that,  if  a  person  had  been  acquitted  on  that  count, 


'i'i 


328 


AMERICAN  CRIMINAL  REPORTS. 


and  had  been  subsequently  indicted  for  the  same  offense,  he 
would  have  had  a  difficulty  in  setting  up  his  acquittal.  AVith 
regard  to  the  point  as  to  the  proof  of  the  defendant's  hand- 
writing, I  am  clearly  of  opinion  that  the  evidence  was  ad- 
missible. 

Day,  J.    I  concur  with  mv  Lord. 

Williams,  J.  I  am  of  the  same  opinion,  and  I  do  not  think 
it  was  necessary  to  refer  to  the  rules  to  which  my  learned 
brother  Mathew  has  referred,  and  which  enable  the  court  to 
supply  an  imperfect  averment.  Because  here,  although  the 
count  is  inartistically  drawn,  I  concur  it  was  sufficient. 

Kennedy,  J.     I  concur  in  the  judgment  of  my  Lord. 
Conviction  affirmed. 

J.  Wldtmore,  solicitor  for  the  prosecution. 

Garvatt,  Dadleij,  "Worcestershire,  solicitor  for  the  prisoner. 


r 

V, 

-  ^ 


Note.— Did  kill  and  murder— Not  sufficient  description.— An  indictment 
charging  that  defendant,  "  on  the  9th  day  of  IMarch,  1894,  in  tl>e  county 
aforesaid,  then  and  there,  feloniously,  willfully,  and  with  malice  afore- 
thought, kill  and  murder  one  J.  B.,"  etc.,  is  fatally  defective  in  substance, 
and  the  omission  of  some  word  or  words  before  "kill  and  murder,"  with- 
out which  no  offense  is  charged,  is  not  a  mere  "formal  defect,"  within 
Code  1893,  §  1854,  providing  that  formal  defects  may  be  supplied  by 
amendment.     Cook  v.  State,  78  Miss.  517. 

Duplicity. — An  indictment  under  statute  punishing  whoever,  "  with 
intent  to  commit  larceny,  *  *  »  confines,  maims,  injures,  *  *  • 
or  puts  in  fear  any  person,  for  the  purpose  of  stealing  from  a  building,"  is 
not  bad  for  duplicity,  because  the  allegations  as  to  the  acts  done  contain  all 
the  elements  of  an  assault  and  battery.     Com.  v.  Holmes,  165  Ma.ss.  457. 

Misdemeanor  and  felony. — An  indictment  charging  a  misdemeanor  in 
one  count  and  a  felony  in  ahother  is  bad  on  motion  in  arrest  of  judgment 
after  a  general  verdict  of  guilty.    James  v.  State,  104  Ala.  20. 

Idem  sonans. — The  names  "  Crusius,"  as  alleged  in  an  indictment,  and 
"  Crushes,"  as  shown  by  the  proof,  are  idem  sonans.  People  v.  James,  110 
Cal.  155. 

Accessories  must  be  indicted  as  principals. — In  this  State  an  accessory 
can  only  be  indicted  and  punished  as  a  principal.  Fixmer  v.  Tlie  People, 
153  111.  123. 

Circ^umta  ices  may  be  stated  as  inducement. — A  statement  of  the  circum- 
stances of  the  offense,  as,  in  an  indictment  of  an  accessory  at  common  law, 
will  not  render  an  indictment  bad,  provided  it  also  charges  the  defendant 
directly  with  the  crime  as  principal.    Id. 


CARR  V.  STATE. 


329 


Indictment  for  murder  does  not  include  aaaanlt  and  battery.— Statutes  of 
Indiiina  providing  that,  upon  an  indictment  for  an  offense  consisting  of 
degrees,  tlie  defendant  may  be  found  guilty  of  any  degree  inferior  to  the 
one  clmr^ed,  or  of  an  attempt  to  commit  the  offense,  and  that  in  other 
ciises  the  defendant  may  bo  found  guilty  of  any  offense  necessarily  in- 
cluded in  the  one  charged,  do  not  authorize  a  conviction  of  an  assault  and 
battery  under  a  charge  of  murder  in  the  first  degree.    Seed  v.  State,  HI 

Ind.  116. 

Forgery  of  deed.— An  indictment  charging  that  defendant  did  "  unlaw- 
fully, etc.,  forge  a  certain  deed,"  etc.,  necessarily  imports  that  it  was  done 
without  authority.    Beniictt  v.  State.  30  S.  W.  (Ala.)  947. 

Saiiie,— It  is  not  necessary  to  set  out  the  particular  acts  in  which  the 
forgery  consisted.    Id. 

Same.— An  indictiiient  charging  the  forgery  of  a  deed  and  acknowledg- 
ment thereof  charges  but  one  offense.    Id. 

How  committed. — Forgery  may  be  committed  by  making  an  instrument, 
purporting  to  be  the  warranty  deed  of  a  person  deceased,  conveying  the 
land  to  one  who  was  on  trial  for  taking  wood  from  the  land  of  another,  and 
made  for  the  purpose  of  being  used  on  such  trial.    Id. 

Idem  sonnns. — "  Watkins  "  and  "  Wadkins  "  are  idem  sonans,  so  that  there 
was  no  variance  between  an  indictment  for  forging  a  deed  to  one,  and  the 
deed  itself,  purporting  to  convey  the  premises  to  the  other.    Id. 

Fttrtance.— There  is  a  fatal  variance  between  an  indictment  for  forgery 
of  a  deed  which  described  the  land  as  '•  north  half,"  etc.,  and  in  which  the 
word  "  sum  "  was  crossed  out,  in,  the  clause  reciting  the  consideration  for 
release  of  dower,  and  concluding,  "Witness  my  hands  and  seals,"  and 
an  indictment  purporting  to  set  out  the  deed  in  hcec  verba,  but  which 
described  the  land  as  "  the  north  half,"  in  which  the  word  "  sum  "  was  not 
crossed,  and  which  concluded  with,  "  Witness  my  hand  and  seal,"  etc.    Id. 


Carr  v.  State. 


(96Ga.  284.) 
Insanity:  Defense  of— General  issue-Instructions, 


■If 


1.  The  defense  of  insanity  at  the  time  of  tho  perpetration  of  the  alleged 

crime  is  included  in,  and  made  by  the  plea  of  the  general  issue;  and 
while,  in  the  absence  of  a  special  plea  setting  up  insanity  at  the  time 
of  the  trial,  it  may  not  have  been  necessary  for  the  court  to  explain  ta 
the  jury  the  nature  and  purpose  of  such  a  plea,  that  this  was  done  is 
not  cause  for  a  new  trial. 

2.  The  defense  being  general  insanity,  and  there  being  no  evidence  of  spe- 

cial dementia,  or  that  the  accused  was  laboring  under  any  delusion  as 
to  the  act  committed,  there  was  no  error  in  charging:  "  Insanity  is 
where  there  is  a  total  or  partial  impairment  of  the  intellect,  and  to 
such  an  extent  that  the  person  who  is  thus  affected  does  not  know  the 


I        -I 


■I-        i    r  ', 


i!  ' 

t 

1 
1 

i 

1   '  ; 

■     '\\ 

■ 

■^ 

330 


AMERICAN  CRIMINAL  REPORTS. 


diflferenco  between  right  and  wrong,  as  to  the  act  that  he  is  com- 
mitting." 
8.  Tliat  the  court  undertook,  in  a  general  way,  to  explain  to  the  jury  the 
different  forms  and  Icinds  of  insanity,  was  not,  of  itself,  an  invaHion  of 
their  province  in  passing  upon  the  questions  of  fact  involved  in  the 
case. 

4.  While  it  may  not  have  been  appropriate  for  the  court  to  inform  the 

jury,  as  matter  of  fact,  that  insanity,  in  all  its  forms,  was  liable  to 
become  worae;  that  insanity  of  any  kind  was  progressive  in  its  nature; 
and  that,  while  there  were  some  exceptions,  the  general  rule  was  that 
it  progressed  till  it  ended  in  complete  dementia — so  doing  was  neither 
expressing  an  opinion  as  to  the  facts  of  the  pending  case,  nor,  in  view 
of  all  the  evidence  and  of  the  respective  contentions  of  tlie  parties, 
cause  for  a  new  trial. 

5.  The  legal  presumption  being  tliat  every  person  is  sane,  and  thot  every 

such  pei-son  remains  so  until  the  contrary  is  shown,  it  is  essential  to  the 
establishment  of  the  distinctive  defense  of  insanity,  as  sucii,  that 
insanity  at  tiie  time  of  the  commission  of  the  offense  be  proved  by  a 
preponderance  of  the  evidence;  and  the  burden  of  so  doing  rests  upon 
the  accused. 

6.  The  charges  complained  of,  and  which  are  not  covered  by  the  rulings 

announced  in  the  preceding  notes,  if  erroneous  at  all,  contain  nothing 
which  would  justify  the  granting  of  a  new  trial. 


Error  from  Superior  Court,  Fulton  County;  R.  II.  Clarke, 
Judf^e. 

Alex.  Carr,  having  been  convicted  of  murder,  brings  error. 
Affirmed. 

Arnold  &  Arnold,  for  plaintiff  in  error. 
C.  D.  lUll,  Solicitor-General,  and  J.  M.  Terrell^  Attorney- 
General,  contra. 


Lumpkin,  J.  It  is  the  right  of  counsel  conducting  the 
defense  of  one  charged  with  crime  to  file  a  special  plea  alleg- 
ing that  the  accused  is  insane  at  the  time  of  the  trial;  and 
when  such  a  plea  is  filed  it  becomes  the  duty  of  the  court  to 
cause  the  issue  thus  made  to  be  first  tried  by  a  special  jury, 
and  if  the  plea  is  found  to  be  true  an  order  should  be  passed 
committing  the  accused  to  the  lunatic  asylum.  In  a  trial  of 
this  kind  the  merits  of  the  accusation  against  the  accused  are 
not  involved  or  passed  upon.  When,  however,  no  such  plea  is 
filed,  and  the  accused  goes  to  trial  upon  the  general  plea  of 
"  not  guilty,"  he  may  show  under  that  plea  that  he  was  insane 
at  the  time  the  alleged  crime  was  committed  and  tlierefore 
legally  irresponsible  for  the  same.    The  rules  above  stated  are 


CABR  V.  STATE. 


831 


well  established  in  the  criminal  procedure  of  this  State,  and 
no  citation  of  authority  in  support  of  them  need  be  made. 

At  the  trial  of  the  case  now  under  investigation  the  judge 
undertook  to  state  these  rules  to  the  jury.  It  was  perfectly 
proper  to  inform  them  as  to  the  right  of  the  accused  to  show 
be  was  insane  at  the  time  he  committed  the  homicide;  but 
there  was,  perhaps,  no  occasion  for  explaining  to  them  the 
nature  and  purpose  of  a  special  plea  alleging  insanity  at  the 
time  of  the  trial,  as  no  such  plea  had  been  filed.  We  can  not 
see,  however,  that  so  doing  affords  any  reason  for  granting  a 
new  trial. 

While  it  is  true  that  counsel  for  the  accused  contended  he 
was  insane  at  the  time  of  the  trial,  they  did  not  choose  to 
present  this  special  plea,  and  have  it  first  determined;  and 
although,  by  reason  of  the  instructions  of  the  court,  the  jury 
may  have  been  made  aware  of  his  right  to  present  such  a  spe- 
cial ])lea,  it  is  not  at  all  probable  that  this  operated  injuriously 
against  him,  because  the  court  very  clearly  and  distinctly  in- 
formed the  jury  that  his  mental  condition  since  the  commission 
of  the  homicide,  and  at  the  very  time  of  the  trial,  might  be 
considered  by  them,  as  throwing  light  upon  the  condition  of 
his  mind  when  the  homicide  occurred;  and  the  question  whether 
or  not  the  accused  was  insane  at  the  time  of  the  trial  was  one 
with  which  the  jury  were  concerned  only  in  so  far  as  it  might 
throw  light  upon  his  mental  condition  when  he  took  the  life 
of  the  deceased. 

The  court,  among  other  things,  gave  the  charge  quoted  in 
the  second  headnote,  which  was  but  stating,  in  substance,  the 
general  rule  laid  down  bv  this  court  as  far  back  as  the  case  of 
lioherts  v.  State^  3  Ga.  310,  in  the  following  language :  "  If  a 
man  has  reason  sufficient  to  distinguish  between  right  and 
wrong,  in  relation  to  a  particular  act  about  to  be  committed, 
he  is  criminally  responsible."  The  same  rule  was  announced 
in  Choice  v.  State,  31  Ga.  424,  and  has  been  uniformly  recog- 
nized by  this  court,  so  far  as  we  are  informed,  up  to  this  date. 

In  Roberts'  case,  supra,  it  was  also  stated  that  an  exception 
to  the  general  rule  existed  where  a  man  has  sufficient  reason 
to  distinguish  between  right  and  wrong  as  to  a  particular  act 
about  to  be  committed,  yet,  in  consequence  of  some  delusion, 
the  will  is  overmastered,  and  there  is  no  criminal  intent.  But 
the  qualification  was  added  that  the  act  itself  must  be  con- 


ti 


832 


AMERICAN  CRIMINAL  REPORTS. 


noctod  with  the  poculiar  delusion  under  which  the  porson  ig 
hiborin<^.  Judge  Nisbut,  in  commenting  upon  this  exception 
refers  to  the  celebrated  case  of  Kin<j  v.  ilicl field,  27  I  low.  St. 
Tr.  I^!5l,  and  the  groat  speech  of  Mr.  Erskine,  which  "shed 
new  light  upon  the  law  of  insanity." 

In  J)<infnrth  v.  State,  75  Ga.  014,  the  ])resent  Chief  Justice 
who  was  then  upon  the  circuit  bench,  after  stating  in  his  charge 
the  general  rule  as  above  mentioned,  gave  the  accused  the 
benefit  of  an  exception  to  the  effect  that  he  was  irresponsible 
if  the  killing  was  done  under  sonu3  irresistible  impulse, 
the  result  of  a  diseased  and  disordered  mind,  which  ovoi'came 
his  will  and  took  away  his  power  of  self-control,  provided  the 
act  itself  was  connected  with  the  peculiar  delusion,  if  any, 
under  which  he  was  laboring  at  that  time.  Justice  Hall,  in 
delivering  the  opinion  of  this  court,  remarked,  in  gcMioral 
terms,  on  page  628,  that  the  charge  referred  to  was  full,  fiiir, 
and  impartial,  and  quite  as  favorable  to  the  accused  as,  under 
the  law,  could  have  been  asked. 

In  Fixjartij  v.  State,  SO  Ga.  450,  the  trial  judge  was  retjHcsted, 
among  other  things,  to  charge  the  jury  as  follows:  "  If  the 
defendant  commit  an  assault,  knowing  it  to  be  wrong,  when 
driven  to  it  by  an  uncontrollable  and  irresistible  impulse,  aris- 
ing not  from  natural  passion,  but  from  an  unsound  condition  of 
mind,  he  is  not  criminally  responsible." 

Other  requests  to  a  somewhat  similar  effect  were  also  pro 
sented.    This  court  held  that  there  was  no  error  in  refusin 
give  these  requests  in  charge,  and  it  is  stated  in  the  opiii 
that  the  court  declined  to  review  its  previous  rulings  on  the 
subject  presented,  seeing  no  reason  to  doubt  their  soundness 
and  wisdom.    The  facts  of  the  Fogarty  case  are  not  set  forth, 
but  a  general  idea  of  the  nature  of  the  case  may  be  derived 
from  the  concluding  sentence  of  the  opinion,  on  page  408,  SO 
Ga.,  Avhere  it  is  stated  that  "  the  defendant  was  guilty  of  a 
most  outrageous  and  unprovoked  violation  of  the  penal  laws 
of  the  State,  and,  being  guilty,  he  must  suffer  the  consequences 
of  his  unbridled  passion." 

Presumably,  therefore,  there  was  nothing  in  the  evidence 
to  show  that  Fogarty  acted  under  tho  influence  of  any  delu- 
sion or  irresistible  impulse  to  commit  the  homicide  for  which 
he  was  held  to  be  responsible  in  law. 

In  the  case  of  Patterson  v.  State,  80  Ga.  70,  which  was  an 


i 


Atti^ 


CABR  V.  STATE. 


833 


indictment  against  the  accused  for  an  assault  with  intent  to 
murder  his  wife,  an  effort  was  made  to  sot  up  the  defense  that 
ho  stabbed  her  while  acting  under  an  insane  delusion  and  an 
irresistible  impulse.  The  trial  judge,  in  excluding  certain  evi- 
dence otfored  for  this  purpose,  expressed  an  opinion  adverse 
to  a  defense  of  this  character;  but  this  court  declined  to  pass 
upon  the  correctness  of  this  opinion  in  the  abstract,  and  upliold 
the  rejection  of  the  evidence  for  another  reason. 

Wiuitovor  may  be  deduciblo  from  the  foregoing  cases,  there 
seems  to  be  no  real  necessity,  in  the  case  now  under  considera- 
tion, to  discuss  to  what  extent  the  general  rule  for  testing  in- 
sanity, above  stated,  may  or  may  not  bo  varied  with  reference 
to  delusions  or  irresistible  impulses.  The  defense,  as  we  under- 
stand it,  was  general  insanity,  and  not  that  the  accused  was  a 
monomaniac,  or  afflicted  with  any  particular  type  of  insanity. 
There  was  no  evidence  of  special  dementia,  nor  was  it  sought 
to  be  shown  that  while  the  accused  may,  in  a  general  way, 
have  known  the  difference  between  right  and  wrong,  he  was, 
upon  any  particular  subject,  of  defective  mind.  Certainly 
there  was  no  proof  authorizing  the  conclusion  that  in  taking 
the  life  of  King,  the  accused  Avas  acting  under  any  special  delu- 
sion in  connection  with  that  act,  or  that  in  committing  it  he 
was  actuated  by  an  impulse  which,  from  weakness  of  will,  pro- 
ducetl  by  mental  disease,  he  was  utterly  incapable  of  resisting. 
The  evidence  does  show  that  on  various  occasions  before  the 
lomicide  the  accused  manifested  eccentricity  of  mind,  and  did 
things  which  would  hardly  be  expected  from  persons  of  sound 
common  sense  and  of  perfectly  well  balanced  minds.  It  was 
also  shown  that  he  had  certain  erratic  ideas  and  notions  which 
would  not  irobably  have  been  entertained  by  a  thoroughly 
sensible  and  clear-headed  man.  But,  putting  all  these  things 
together,  they  did  not  amount  to  more  than  showing  that  up 
to  the  time  of  the  homicide  the  accused  was  more  or  less  eccen- 
tric in  mi  1(1,  and  had  certain  marked  peculiarities  of  thought 
and  conduct.  They  would  hardly  have  justified  the  conclusion 
that  whatever  infirmity  he  had  was  insanity  of  any  particular 
form,  though  they  may  have  manifested  a  decided  tendency 
to  general  dementia;  and  if,  at  the  time  of  the  trial,  he  was,  as 
his  counsel  contended,  really  insane,  it  was  but  the  outcome  of 
previous  indications,  which  had  not  gone  to  the  extent  of  ren- 
dering him  mentally  irresponsible  at  the  time  of  the  killing. 


«()i 


; 


II 


■r! 


.'  I- 


h    /I 


J 


??. 


334 


AMERICAN  CRIMINAL  REPORTS. 


11  m 


The  trial  judge  was  not  requested  to  charge  upon  the  sub- 
ject of  delusions  or  irresistible  impulses,  and  would,  in  our 
opinion,  have  been  justified  in  declining  so  to  do,  for  the  want 
of  evidence  warranting  instructions  upon  these  subjects,  even 
if  it  would,  in  a  case  of  a  different  character,  have  been  proper 
to  qualify  the  general  rule  we  have  already  mentioned  as  bein^ 
quoted  in  the  second  head-note.  We  therefore  simply  rule 
that  in  this  case  the  instruction  given  was  proper  and  right, 
and  we  do  not  now  undertake  to  say  whether,  under  different 
facts,  it  would  or  would  not  be  the  duty  of  the  court  to  mod- 
ify this  instruction  by  stating  exceptions  relating  to  special 
phases  of  alleged  mental  irresponsibility. 

The  court  undertook,  at  some  length,  to  state  and  explain 
to  the  jury  the  different  forms  and  kinds  of  insanity.  The 
definitions  given  may  not  have  been  comprehensive  enough  to 
include  every  degree  and  type  of  this  disease,  and  it  may  be 
that  the  language  employed  was  not,  in  all  respects,  perfectly 
accurate.  We  do  not,  however,  feel  disposed  to  enter  into  a 
discussion  of  these  questions;  nor  do  we  think  we  are  able  to 
give  any  better  presentation  of  the  subject  than  was  done  by 
our  ex{)erienced  and  learned  brother  of  the  circuit  bench.  It 
is,  at  this  time,  only  necessary  to  say  that  in  telling  the  jury 
what  insanity  was,  and  in  stating  the  different  forms  in  which 
it  appeared,  he  did  not  invade  their  province  in  passing  upon 
questions  of  fact  involved  in  the  case  on  trial;  nor  did  he,  in 
our  opinion,  say  in  this  connection  anything  which  could  have 
resulted  in  any  harm  to  the  accused. 

The  court  gave  to  the  jury  another  instruction,  the  nature 
of  which  is  indicated  in  the  fourth  head-note.  We  are  strongly 
inclined  to  the  belief  that  this  instruction  expresses  nothing 
but  the  truth,  though  it  may  not  have  been  appropriate  for  the 
court  to  inform  the  jury  that  insanity,  in  all  its  forms,  was 
liable  to  become  worse,  and  that  it  generally  ended  in  com- 
plete dementia.  Still,  it  would  require  somewhat  of  a  strain 
to  hold,  as  was  contended,  that  so  doing  was  expressing  an 
opir'f.n  is  to  the  facts  of  the  pending  case. 

It  was  also  contended  that  this  instruction  was  hurtful  to 
the  accused  for  an  additional  reason.  His  counsel  claimed  he 
was  insane  while  the  trial  was  progressing,  which  the  State,  of 
course,  denied.  The  argument  here  was  that,  if  the  jury  were 
of  the  opinion  that  the  accused  was  not  insane  at  the  trial,  they 


CARR  V.  STATE. 


335 


would  have  been  led  by  this  instruction  to  believe  he  could  not 
have  been  so  at  any  previous  time,  because,  if  he  ever  had 
been,  he  would,  according  to  the  charge  of  the  court,  have  been 
bound  to  become  worse,  and  therefore  would  undoubtedly 
manifest  decided  insanity  at  the  trial.  This  argument,  it  will 
be  perceived,  will  fall  to  the  ground,  if,  in  point  of  fact,  the 
appearance  and  symptoms  of  the  accused  during  the  trial  were 
such  as  to  manifest  a  then  existing  condition  of  insanity  or 
imbecility;  and,  besides,  as  has  already  been  stated,  the  jury 
were  told  that  they  could  consider  his  then  condition  as  illus- 
trative of  the  state  of  his  mind  at  the  time  of  the  homicide; 
and  under  the  charge,  as  a  whole,  the  jury,  who  were  doubtless 
sensible  men,  would  never  have  found  the  accused  guilty,  if 
they  had  not  been  satisfied  that  whatever  his  condition  at  the 
trial  may  have  been,  he  was  legally  responsible  when  he  shot 
King  down  in  the  street. 

The  propositions  stated  in  the  fifth  head-note  are  sufficiently 
supported  by  the  decision  of  this  court  in  Danforth's  case, 
supra,  and  that  of  Carter  v.  State,  56  Ga.  4G3. 

It  would  hardly  be  profitable  to  enter  upon  a  full  discus- 
sion, in  detail,  of  a-ll  the  grounds  of  the  motion  for  a  new  trial 
made  in  this  case.  We  have  carefully  examined  the  charges 
complained  of,  and,  if  erroneous  at  all,  they  contain  nothing 
which  would  justify  this  court  in  granting  a  new  trial.  In- 
deed, the  charge,  as  a  whole,  was  a  very  excellent  one. 

Counsel  for  the  accused  filed  a  special  plea  admitting  the 
homicide  with  which  he  was  charged,  but  denying  his  respon- 
sibility under  the  law,  because  of  his  alleged  insanity  at  the 
time  the  deed  was  committed,  and  thereupon  claimed  the  right 
to  open  and  conclude  the  evidence  and  the  argument.  The 
court  struck  out  the  plea,  and  refused  to  allow  this  privilege. 
Both  these  rulings  were  correct.     See,  again,  Danforth's  case. 

There  was  much  evidence  bearing  upon  the  alleged  insanity 
of  the  accused.  The  newly  discovered  evidence  was  merely 
cumulative  upon  this  question. 

It  was  alleged  that  certain  irregularities  and  improprieties 
were  committed  by  the  court  and  by  ciounsel  for  the  State  dur- 
ing the  progress  of  the  trial.  The  grounds  of  the  motion  for 
a  new  trial  relating  to  these  matters  were  not,  however,  ap- 
proved. 

The  grounds  alleging  misconduct  on  the  part  of  the  jury 


336 


AMERICAN  CRIMINAL  REPORTS. 


in  reading  newspaper  reports  of  the  trial  were  sufficiently 
disproved  by  the  affidavits  of  all  the  jurors.  Additional  atli- 
davits  made  by  two  of  the  jurors  were  apparently  in  conflict 
with  those  to  which  they  originally  deposed,  but  these  latter 
affidavits  could  not  be  received  nor  considered  for  the  purpose 
of  impeaching  the  verdict.    IIlll  v.  State,  91  Ga.  153. 

We  have  given  the  evidence  iu  this  case  a  very  thorough 
examination  and  consideration.  In  our  oinnion  it  fully  war- 
ranted the  jury  in  reaching  the  conclusion  that  at  the  time  of 
the  homicide  the  accused  was  not  insane,  and  we  find  no  rea- 
son to  disturb  the  verdict.  Upon  the  assumption  that  the 
accused  knew  what  he  was  doing,  a  more  deliberate,  cold 
blooded,  and  wicked  murder  was  never,  perhaps,  committed 
within  the  borders  of  this  State.  In  view  of  all  the  evidence, 
we  are  unwilling  to  take  upon  ourselves  the  responsibility  of 
saying  the  verdict  does  not  exprsss  the  real  truth  of  the  case. 
If  the  unfortunate  man  who  is  doomed  to  death  had  originally 
a  somewhat  diseased  mind,  and,  because  of  the  advancing 
tendency  of  his  mental  infirmity,  is  now  actually  insaqe,  the 
law,  in  its  humanity,  will  avert  from  him  the  penalty  of  death, 
and  commit  him  to  the  lunatic  asylum.  If  he  is  not  insane, 
he  must  resign  himself  to  the  fate  brought  upon  him  by  his 
own  lawless  and  terrible  act.    Judgment  affirmed. 

Note. — Mental  condition.— In  Peojile  v.  Ward,  110  Cal.  369,  which  was 
a  trial  for  bribery,  where  tlie  defense  of  insanity  was  intcrjiosed,  it  was 
held  that  evidence  of  the  condition  of  defendant's  mental  condition,  at  the 
time  of  examination,  is  not  admissible  to  prove  his  mental  condition  on 
the  date  of  the  killing. 

Where  circumstantial  evidence  is  relied  upon  to  establish  guilt,  it  should 
be  sufficient  to  exclude,  not  every  other  hypothesis,  but  every  other  rational 
hypothesis  than  guilt.    Id. 

An  instruction  asked,  containing  the  words,  "  that  the  evidence  against 
defendant  is  purely  and  wholly  circumstantial,"  when  in  fact  it  is  not,  is 
properly  denied.    Id. 

Defendant  is  presumed  to  be  sane  until,  by  a  preponderance  of  evidence, 
he  establishes  affirmatively  his  insanity.    Id. 

Reasonable  doubt. — The  doctrine  of  reasonable  doubt  has  no  application 
to  the  determination  of  an  issue  of  the  sanity  of  the  accused  in  criminal 
cases.    Id. 

In  this  case  Searls,  ('.,  says :  The  contention  of  appellant  is  that  the  doc- 
trine of  reasonable  d'.abt  applies  to  the  question  of  insanity,  and  hence  that 
the  instruction  was  erroneous.  We  need  not  stop  to  discuss  the  question 
here,  as  it  has  been  foreclosed  against  the  contention  of  appellant  by  the 
previous  rulings  of  this  court.    See  People  v,  McNtdty,  93  Cal.  437;  Peoiik 


COMMONWEALTH  v.  WALSH. 


337 


17.  frrtwrs,  88  Cal.  233;  PeoiJlev.  Enbanks,  8Q  Cal.  295;  People  v.  Kernaghan 
72  Cal.  CO!);  Peojjie  v.  Measersmith,  61  Cal.  246;  People  v.  Wilson,  49  Gal. 
13-  People  V.  McDonell,  47  Cal.  134;  People  v.  Coffinnn,  24  Cal.  231;  People 
V.  Meyers,  20  Cal.  518.  The  doctrine  of  these  cases  is  that  in  criminal  cases 
the  defendant  is  presumed  to  be  sane  until  the  contrary  is  made  to  appear, 
and  his  insanity,  if  relied  upon  as  a  defense,  must  be  established  affirma- 
tively, by  a  preponderance  of  proof,  as  in  civil  cases;  and,  this  being  so,  the 
question  of  reasonable  doubt,  either  in  favor  of  or  against  the  defendant,  as 
to  bis  sanity  or  insanity,  has  no  application  to  such  issue.  The  instruction 
upon  the  question  of  reasonable  doubt,  upon  the  whole  case,  was  full  and 
complete,  and  in  substantially  the  language  of  Shaw,  C.  J.,  in  Com.  v. 
Webster,  5  Gush.  820.  The  court,  in  instructing  the  jury  upon  the  subject 
of  insanity,  informed  them  "  that  the  doctrine,  that  in  some  forms  of  insan- 
ity the  patient  or  sufferer  knows  the  nature  of  his  act  fully,  but  at  tho 
flame  time  can  not  prevent  it,  through  paralysis  of  the  will  power,"  and 
which  is  known  as  •'  uncontrollable  impulse,"  has  no  legal  standing  in  this 
State,  etc.  The  instructions  on  the  subject  of  insanity,  taken  together,  are 
in  consonance  with  the  doctrine  enunciated  in  People  v.  Hoin,  63  Cal.  120, 
and  are  not  objectionable. 


Commonwealth  v.  Walsit. 
( 165  Mass.  63.) 


Intoxicating  Liquors:    Maintenance  by  wife  of  liquor  nuisance— Liability 

of  husband. 

Where  a  wife  keeps  in  her  husband's  hotise  liquors  for  sale  in  violation  of 
law,  the  husband  is  liable  for  maintaining  a  liquor  nuig?.nce  if  he  has 
knowledge  of  the  fact  of  her  intent,  unless  he  uses  reasonable  means 
to  prevent  her  from  cariying  out  such  intent. 

Exceptions  from  Superior  Court,  Bristol  County;  llenry  N. 
Sheldon,  Judge. 

Jaraes  Walsh  was  convicted  of  keeping  and  maintaining  a 
tenement  used  for  the  illegal  sale  and  unlawful  keeping  of 
intoxicating  liquors,  and  excepts.    Exceptions  overruled. 

Andrew  J.  Jennings,  District  Attorney,  for  the  Common- 
wealth. 

Charles  E.  Cummings  ( J.  T.  Cummings  with  him),  for  de- 
fendant. 

Knowlton,  J.  The  only  exception  argued  in  this  case  is  to 
an  instruction  of  the  presiding  justice  to  the  jury  as  follows  .* 


i  '    i 


I'l 


I       ! 


''I 

M 

t'i  V 


:'l 


I  »" 


338 


AMERICAN  CRIMINAL  REPORTS. 


If  the  defendant's  wife  "  kept  in  the  house  of  her  husband,  or 
in  the  premises  which  were  occupied  and  controlled  by  her 
husband,  and  if  the  store  was  in  her  husband's  house  it  would 
still  be  under  his  control,  intoxicating  liquors  for  sale  in  vio- 
lation of  law,  then  he  will  be  liable  therefor  under  this  com- 
plaint, if  he  has  knowledge  of  the  fact  and  of  her  intent,  unless 
he  uses  reasonable  means  to  prevent  her  from  carrying  out  such 
intent;  and  there  is  no  evidence  that  this  defendant  has  used 
or  attempted  to  use  such  means,  nor  has  he  contended  that  he 
did  so."  This  instruction  was  in  accordance  with  the  decis- 
ions of  this  court.  Coin.  v.  Barry,  115  Mass.  14G;  Com  v. 
Wood,  97  Mass.  225;  Coi/i.  v.  Kennedy,  119  Mass.  211;  Com.  v. 
Carroll,  124  Mass.  30. 

Upon  the  hypothesis  stated  in  the  instruction,  the  defendant 
unquestionably  kept  the  tenement.  The  tenement  was  un- 
questionably "  used  for  the  illegal  keeping  or  sale  of  intoxi- 
cating liquor,"  and  therefore,  under  Pub.  St.  c.  101,  §  G,  was 
a  common  nuisance.  Even  if  the  defendant  was  ignorant  of 
the  illegal  use  which  was  being  made  of  his  tenament,  he  was 
within  the  terms  of  the  statute  which  prescribes  punishment 
for  a  person  who  keeps  a  common  nuisance. 

There  is  a  moral  if  not  a  legal  obligation  upon  one  in  the 
occupation  of  real  estate,  to  see  that  it  is  not  so  kept  or  used  as 
to  be  a  common  nuisance;  and,  if  this  statute  were  construed 
like  other  statutes  in  regard  to  the  unlawful  sale  of  intoxicat- 
ing liquor,  the  keeper  of  a  tenement  which  was  in  fact,  under 
the  law,  a  common  nuisance,  would  be  punished,  whether  he 
knew  of  the  use  which  made  it  a  nuisance  or  not. 

But  if  we  construe  this  statute  more  favorably  to  persons 
accused,  and  hold  that  an  intent  to  violate  the  law  must  be 
proved,  and  that  a  keeper  of  a  tenement  is  not  liable  criminally 
if,  while  he  uses  due  diligence,  his  house  is  a  common  nuisance 
by  reason  of  its  use  for  the  unlawful  sale  of  intoxicating  liquors 
by  a  boarder  or  lodger,  without  his  knowledge,  it  does  not 
relieve  the  defendant  in  this  case.  The  question  whether  a 
keeper  of  a  tenement  is  liable  criminally  for  individual  acts  of 
unlawful  sale  of  liquors  made  in  his  house  by  his  wife,  from  her 
own  property,  is  very  different  from  the  question  whether  he  is 
liable  for  continuing  to  keep  the  common  nuisance,  if  he 
knows  of  the  unlawful  use  of  his  property  and  takes  no 
measures  to  prevent  it.    Discussions  of  the  question  how  far 


COMMONWEALTH  v.  WALSH. 


339 


a  husband  is  liable  criminally  for  unlawful  acts  done  by  his 
wife  in  his  actual  or  constructive  presence  have  little  relevancy 
to  the  question  last  above  stated.  Wlien  the  tenement  is  the 
sole  and  separate  property  of  his  wife,  and  she  has  such  legal 
control  of  it  as  its  ownership  gives  her,  it  is  a  question  of  more 
difficulty  wliether  he  or  she  keeps  it,  within  the  meaning  of 
the  statute.  Even  in  such  a  case  it  has  been  held  that,  if  the 
building  is  their  dwelling  house,  the  husband  so  far  partici- 
pates in  keeping  it  for  an  illegal  purpose  as  to  make  hun  sub- 
ject to  punishment.  Com.  v.  Wood,  97  Mass.  225;  Com.  v. 
Carroll,  124  Mass.  30. 

The  defendant  relies  upon  Com.  v.  ITUl,  145  Mass.  305.  The 
decision  in  that  case  is  merely  that  certain  evidence  was 
wrongly  excluded,  and  is  entirely  consistent  with  the  instruc- 
tion given  in  the  present  case.  The  discussion  in  the  opinion 
relates  to  facts  very  different  from  those  assumed  in  the  instruc- 
tion before  us.  The  title  to  the  real  estate  in  that  case  was  in 
the  defendant's  wife,  and  the  evidence  tended  to  show  that  the 
unlawful  business  was  carried  on  by  her  on  her  own  account; 
and  the  defendant  offered  evidence  that  he  had  "  used  all 
reasonable  and  practicable  means  in  his  power  to  prevent  his 
wife  from  doing  any  of  the  acts  charged,  and  that  his  wife  told 
him  the  property  was  hers,  and  she  should  do  as  she  pleased." 

So  far  as  the  language  of  the  opinion  tends  to  modify  any- 
thing that  has  been  said  in  previous  decisions,  it  relates  to 
cases  where  the  punishable  act  is  done  by  the  wife,  and  the 
question  is  whether  the  husband  is  liable  by  reason  of  coercion 
or  participation,  while  in  the  case  now  before  us,  the  husband 
and  not  the  wife,  was  confessedly  the  keeper  of  the  tenement 
which  was  so  used  as  to  be  a  nuisance. 

The  criminal  intent  involved  in  the  commission  of  this  crime 
is  the  intent  to  keep  the  tenement,  knowing  and  suffering  it  to 
be  a  common  nuisance.  It  is  immaterial  who  does  the  other 
unlawful  acts  which  make  it  a  common  nuisance.  The  keep- 
er's knowledge  that  it  is  a  nuisance,  unaccompanied  by  active 
efforts  to  prevent  its  being  offensive  in  the  eye  of  the  law,  is 
guilty  knowledge,  which  makes  him  punishable,  under  the 
express  terms  of  the  statute,  for  keeping  it.  In  the  opinion  of 
a  majority  of  the  court  the  entry  must  be :  Exceptions  over- 
ruled. 


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340 


AMERICAN  CRIMINAL  REPORTS. 


'SoTE.—Tgnornncs  of  intoxicating  quality  of  liquor  no  dcfenie.—lt 
knowledge  of  certain  facts  is  necessary  to  constitute  an  offense,  tlio  respond- 
ent  can  always  show  an  ignorance  of  such  facta  in  defense,  or,  ratlier,  to 
insure  a  conviction  it  is  incumbent  upon  the  prosecution  to  show  the 
respondent's  knowledge;  e.  g.,  it  is  an  offense  to  pass  counterfeit  money, 
knowing  it  to  be  counterfeit.  State  v.  Tomasi,  67  Vt.  812.  To  convict,  the 
prosecution  mast  always  show  the  respondent's  knowledge  of  its  basiness. 
The  case  cited  by  the  respondent  {Crabtree  v.  State,  30  Ohio  St.  383)  is  of 
this  class.  The  statute  prohibited  the  sale  of  liquor  to  a  person  by  one  know- 
ing him,  the  vendee,  to  be  a  person  in  the  habit  of  getting  intoxicatt'd.  It 
was  held  necessary  to  show  knowledge  of  the  respondent  of  the  person's 
habit.  The  rule  in  most  instances  seems  tu  be  this  :  If,  to  constitute  an 
offense,  knowledge  of  certain  facts  is  essential,  it  must  invariably  be  shown 
that  the  respondent  has  such  knowledge;  but  if  a  statute  makes  an  act 
penal,  without  reference  to  knowledge,  it  is  then  unnecessary  to  show  it, 
and  ignorance  of  the  fact  is  no  defense. 

The  rule  may  be  stated  in  other  words,  thus :  If  a  statute  commands 
that  an  act  ba  done  or  omitted,  which  in  the  absence  of  the  statute  would 
be  blameless,  ignorance  of  the  fact  or  state  of  things  contemplated  by 
the  statute  will  not  excuse  its  violation.  The  charge  of  the  court  was  in 
accord  with  the  rule  as  stated  in  State  v.  Hopkins,  58  Vt.  850.  For  the 
many  cases  in  which  the  same  doctrine  is  held,  see  People  v.  Robij,  53  Mich. 
577;  and  Farrellv.  State,  32  Ohio  St.  456.  A  case  much  in  point  may  be 
found  in  the  English  Exchequer.    Reg.  v.  Woodrow,  15  Mees.  &  W.  404. 

Duplicity. — An  information  charging  a  violation  of  Acts  1887  of  Michigan, 
in  retailing  liquors  as  a  beverage  without  payment  of  the  recjuirod  tax,  and 
without  posting  the  county  treasurer's  notice  and  receipt  therefor,  is  not 
bad  for  duplicity.  People  v.  Aldrich,  104  Mich.  455.  The  pleadin.i^'s  in  a 
prosecution  for  illegal  sale  of  liquors  need  not  describe  the  building  in 
which  the  liquors  were  sold. 

Druggists  —  Constitutional  law. — In  Commonwealth  v.  Fouler,  90  Ky. 
166,  it  is  held  that  an  act  prohibiting  druggists  from  retailing  spirituous 
liquors  in  quantities  less  than  a  quart,  except  for  medicinal  purposes,  and 
on  the  prescription  of  a  physician,  is  a  police  regulation,  and  not  in  violation 
of  Const.,  Art.  181,  providing  for  license  fees  on  trades  and  occupations. 
The  legislature  can  not  prohibit  the  sale  of  intoxicating  liquors  for  medic- 
inal purposes  but  it  may  regulate  the  sale  of  intoxicating  liquors  by  the 
imposition  of  a  reasonable  license  tax,  and  the  establishment  of  a  rigid 
system  of  police  inspection. 

Evidence — Sufficiency  of. — In  a  prosecution  for  sale  of  liquors,  a  witness 
testified  that  he  sent  for  whisky  by  defendant;  that  he  told  him  to  bring 
him  some  liquor;  that  ho  forgot  how  much  money  he  gave  him,  but 
defendant  brought  him  a  quart  of  whisky;  and  that  he  paid  him  nothing 
for  bringing  it.  Held,  that  the  evidence  showed  a  sale  by  defendant. 
State  V.  Smith,  117  N.  C.  809.  Evidence  that  within  eight  weeks  of  that 
day  intoxicated  men  -were  seen  going  out  of  defendant's  place  is  admis- 
sible to  show  intent  on  the  day  charged.  Com,  v.  Vincent,  165  Mass.  18. 
Evidence  that  defendant,  after  unlocking  the  door,  took  another  person 
into  a  room  in  his  store;  that  said  person  came  out  with  two  bottles  of 
whisky;  and  that  there  were  rumors  that  defendant  sold  liquors  there,  was 


PEOPLE  V.   RAIMS. 


341 


sufficient  to  sustain  a  conviction  for  selling  intoxicating  liquors  without  a 
license.  Smith  v.  Com, ,  96  Ky.  85.  Evidence  that  defendant  paid  a  license 
fee  to  tlie  United  States,  and  kept  the  stamp  exposed  to  view,  was  properly 
admitted.    Brown  v.  State,  105  Ala.  117. 


People  v.   Eaims. 

(20  Colo.  489.) 

Intoxicatino  Liquors  :    Regulation  by  town— Sale  of  liquor— Mileage  limit 
—County  license  no  defense — Evidence — I'roceedings  of  town  board. 

1.  Mills'  Ann.  St.  §  4403,  subd.  18,  gives  to  an  incorporated  town  the  ex- 

clusive right  to  license  or  prohibit  the  sale  of  liquor  within  one  mile 
beyond  its  boundaries.  Mills'  Ann.  St.,  c.  76,  gives  a  general  authority 
to  the  boards  of  county  commissioners  to  grant  licenses  for  the  sale  of 
liquor.  Held,  that  tlie  fact  that  a  county  license  was  issued  to  one 
selling  liquor  within  a  mile  of  an  incorpor.ated  town  did  not  exempt 
him  from  the  operation  of  an  ordinance  of  the  town  thereafter  passed, 
requiring  a  license  to  be  paid  by  those  selling  liquor  within  that  dis- 
tance of  the  town. 

2.  One  who  acquired  no  rights  between  the  time  of  the  making  up  of  the 

original  record  of  proceedings  of  the  town  board  and  the  making  up  of 
a  supplemental  record  is  not  injured  by  the  introduction  of  the  latter 
in  evidence. 

Error  to  County  Court,  Arapahoe  County. 

Dominic  Raims,  convicted  in  a  police  court  of  violation  of  a 
city  ordinance,  appealed  to  the  County  Court,  and  from  a  judg- 
ment therein  discharging  defendant  the  State  brings  error. 
Reversed. 


i    1 


Charles  W.  Everett,  for  the  People. 

No  appearance  for  defendant  in  error. 

Campbell,  J.  This  is  an  action  against  the  defendant,  Dom- 
inic Rairas,  charging  him  with  the  violation  of  an  ordinance 
of  the  town  of  Elyria  regulating  the  sale  of  liquor.  In  the 
police  magistrate's  court,  where  this  action  was  originally 
brought,  a  fine  was  assessed  against  the  defendant.  From  that 
judgment  the  defendant  appealed  to  the  County  Court,  where 
a  trial  was  had  by  the  court  without  a  jurj'^,  and  the  defendant 


ij! 


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:i.': 


342 


AMERICAN  CRIMINAL  REPORTS. 


was  discharged.    The  plaintiff  brings  the  case  here  upon  writ 
of  error. 

There  being  no  appearance  for  the  defendant  in  error,  we 
must  look  to  the  record  and  to  the  argument  of  plaintiff  in 
error  to  ascertain  the  grounds  upon  which  the  court  based  its 
judgment  of  dismissal.  There  are  no  disputed  questions  of 
fact.  The  evidence  is  in  the  form  of  an  agreed  statement  of 
facts,  the  ordinance  book  and  the  record  book  of  the  town,  the 
supplemental  record  of  the  board  of  trustees  as  to  certain  cor- 
rections  and  amendments  of  the  record  of  the  proceedings  of 
the  board  when  the  ordinance  was  passed,  setting  forth  wliat 
took  place  at  that  time,  and  oral  testimony  by  the  mayor  and 
clerk  of  the  town  as  to  the  manner  of  the  passage  of  tlie  ordi- 
nance. 

From  this  evidence  it  appears  that  the  place  of  business  of 
the  defendant  is  within  the  limits  of  Arapahoe  county,  and 
not  within  any  incorporated  city  or  town.  It  is  within  one 
mile  of  the  outer  boundaries  of  the  town  of  Elyria,  and,  as  to 
location,  sustains  the  same  relation  to  the  town  of  Arpjo. 
Both  of  these  towns  are  incorporated  under  the  general  incor- 
poration laws  of  the  State — Elyria  on  the  1st  day  of  August, 
1890;  Argo  at  an  earlier  date.  The  boundaries  of  these  towns 
are  not  contiguous,  though  evidently  it  was  contended  in  the 
court  below  that  inasmuch  as  defendant's  place  of  business  was 
within  one  mile  of  the  limits  of  each  town,  the  boundaries  of 
the  two  towns  "  adjoined,"  in  the  sense  of  the  word  as  employed 
in  the  statute. 

Prior  to  the  incorporation  of  the  town  of  El3-ria,  the  defend- 
ant was  engaged  in  selling  liquor  at  his  place  of  business  in 
quantities  less  than  one  quart;  and  on  the  4th  day  of  August, 
1890,  he  applied  to  the  board  of  commissioners  of  Arapahoe 
county  for  a  liquor  license,  paid  the  fee  exacted  and  thereafter 
received  such  license  from  the  county,  granting  him  permission 
to  sell  for  a  period  of  one  year. 

On  the  I7th  day  of  February,  1891,  the  board  of  trustees  of 
the  town  of  Elyria  passed  an  ordinance,  section  two  of  which 
prohibited  the  sale  of  liquor  within  the  limits  of  the  town,  and 
within  one  mile  beyond  the  outer  boundaries  thereof,  unless 
the  dealer  secured  from  the  town  a  license  therefor.  Other 
sections  of  this  ordinance  provide  a  penalty  for  the  violation 
of  section  two,  and  there  are  other  sections  for  carrying  into 


PEOPLE  V.  RAIMS. 


343 


effect  the  provisions  of  the  ordinance.  The  defendant  never 
had  a  license  from  either  Elyria  or  Argo  to  sell  liquor  at  his 
place  of  business,  and  he  admits  that  he  was  selling  liquor 
thereat  on  the  7th  day  of  May,  18i)l,  as  charged  in  the  com- 
plaint filed  in  the  office  of  the  police  magistrate.  The  regu- 
larity of  the  proceedings  before  the  ])olice  magistrate's  court  is 
conceded,  but  the  validity  of  the  ordinance  is  attacked  on  the 
ground  that  the  yeas  and  nays  were  not  called  when  the  ordi- 
nance was  on  its  passage,  and  that  the  vote  thereon  was  not 
recorded  as  our  statute  requires.  The  oral  testimony  and  the 
supplemental  record  of  July  18,  1891,  if  they  are  to  be  con- 
sidered at  all,  show  conclusively  that  strict  compliance  was  had 
with  the  statute.    Tho  questions  involved  here  are : 

First.  Has  the  town  of  Elyria  authority,  under  the  statute 
enumerating  the  powers  of  municipal  corporations,  to  enact  an 
ordinance  regulating  the  sale  of  liquor  beyond  the  outer  bound- 
aries of  the  town,  and  within  one  mile  of  its  limits? 

Second.  Was  the  county  license  issued  to  the  defendant  a 
protection  to  him  against  the  proceeding  instituted  against 
him  by  the  town  authorities  of  Elyria  'i 

Third.  Is  the  record  of  the  proceedings  of  the  board  of 
trustees  of  the  town  of  Elyria,  at  the  date  of  the  passage  of 
such  ordinance,  suflRcient  to  establish  its  validity  ?  If  not,  is 
oral  evidence  permissible  to  show  compliance  on  the  part  of 
the  board  of  trustees  with  section  4445,  Mills'  Ann.  St.  (Gen. 
St.  §  3324),  which  requires  that  the  yeas  and  nays  shall  be  called 
and  recorded  on  the  passage  or  adoption  of  every  ordinance? 

The  first  two  questions  may  be  considered  together.  The 
statutes  under  which  this  ordinance  was  passed,  in  so  far  as  the 
same  are  pertinent  here,  are  as  follows :  "  The  board  of 
trustees  of  every  incorporated  town  shall  have  exclusive 
authority  to  license  saloons,  groceries  and  all  places  wherein 
spirituous,  vinous,  malt  or  other  intoxicating  liquors  are  sold." 
Section  2833,  Mills'  Ann.  St.  (Gen.  St.  §  2100).  Section  4403, 
Subd.  18,  Mills'  Ann.  St.  (Gen.  St.  §  3312),  among  other  things 
gives  to  an  incorporated  town  "  the  exclusive  right  to  license, 
regulate  or  prohibit  the  selling  or  giving  away  of  any  intoxi- 
cating, malt,  vinous,  mixed  or  fermented  liquor  within  the 
limits  of  the  town,  or  within  one  mile  beyond  the  outer  bound- 
aries thereof,  except  where  the  boumlaries  of  two  towns 
adjoin." 


'it : 


'Wf^ 


,  !i| 


344 


AMERICAN  CRIMINAL  REPORTS. 


No  authority  need  bo  cited  to  the  effect  that  the  regulation 
of  the  liquor  traffic  is  ])urely  a  legislative  ])ower,  and  tliat  it  is 
also  clearly  within  the  power  of  the  legislature  to  delef'uto  to 
the  municipal  authorities  the  power  to  regulate,  license  or  pro- 
hibit the  sale  of  liquors  within  their  own  limits. 

We  are  aware  of  no  rule  that  requires  the  legislature,  in  its 
grant  to  towns  of  the  authority  to  regulate  this  traffic,  to  con- 
fine the  exercise  of  sucli  power  to  the  limits  of  the  towns  them- 
selves. On  the  contrary,  it  is  within  the  power  of  the  legisla- 
ture, in  delegation  of  feuch  authority,  to  provide  that  not  only 
the  territory  included  within  the  limits  of  the  towns  but  also 
territory  within  certain  designated  distances  beyond  the  outer 
boundaries  thereof  shall  come  under  the  operation  of  such 
granted  power.  Chicago  Packing,  etc.,  Co.  v.  City  of  Chicago^ 
88  III.  221. 

In  chapter  76,  Mills'  Ann.  St.,  is  found  the  general  author- 
ity of  the  board  of  county  commissioners  to  grant  licenses 
for  the  sale  of  liquor.  The  defendant  admits  that  lie  was 
selling  liquor  at  his  place  of  business  in  May,  1891,  but  savs 
that  his  license  from  the  county  of  Arapahoe,  granted  in  the 
month  of  August,  1890,  to  sell  for  one  year  thereafter,  is  a 
good  defense  to  this  action  of  the  town  of  Elyria.  The  argu- 
ment is  that  the  county  of  Arapahoe  is  given  the  authority  bv 
the  Statute  to  regulate  the  sale  of  liquor  within  the  county. 
After  Elyria  was  incorporated  as  a  town,  and  before  it  exercised 
its  power  to  pass  an  ordinance  assuming  to  regulate  tlie  sale 
of  liquor  within  the  disputed  territory,  the  defendant  obtained 
a  license  from  Arapahoe  county  to  sell  for  the  ])eriod  of  one 
year.  During  such  period  this  license  was  all  the  authority 
that  defendant  required  for  conducting  his  business,  because 
the  statutes  of  the  State  having  given  Arapahoe  county  con- 
trol over  the  liquor  traffic  within  its  territory,  and  like 
authority  to  the  town  of  Elyria,  the  county  having  first  exer- 
cised such  control,  and  granted  to  defendant  the  right  to  sell, 
the  authority  of  the  town  was  suspended  during  the  life  of  the 
license. 

The  reply  to  this  argument  is  that  the  very  words  of  the 
statute  give  to  the  town  exclusive  authority  to  license  all 
places  wherein  liquors  are  sold  within  this  disputed  territory. 
This  court  has  repeatedly  held,  in  effect,  that  the  statute 
means  what  it  says,  and  that  the  jurisdiction  of  the  town  is 


PEOPLE  V.  IIAIMS. 


845 


exclusive  of  that  assumed  by  iho  county.  Ilufsmith  v. 
People,  8  Colo.  175;  Rogers  v.  People,  9  Colo.  450.  IJut,  if 
this  conclusion  were  wrong,  another  and  satisfactory  reply  is 
that,  even  though  the  authority  of  the  town  is  not  exclusive, 
still,  as  defendant's  counsel  would  concede,  the  legislature  has 
given  both  to  the  county  and  to  the  town  authority  to  regu- 
late such  traffic  at  the  place  in  controversy.  The  license  is  not 
a  contract.  As  this  court  and  other  courts  have  often  held, "  a 
license  confers  the  right  to  do  that  which,  without  the  license, 
would  be  unlawful."  The  legislature,  having  the  right  abso- 
lutely to  prohibit  such  sales  as  defendant  was  making,  has 
also  the  right  to  confer,  and  did  confer,  upon  the  county  and 
upon  the  town,  the  same  power  of  prohibition.  When,  how- 
ever, it  provided  for  a  license  of  this  class  of  traffic,  it  had  the 
power  to  require  that  defendant  should  procure  such  license 
both  from  the  county  and  from  the  town.  So,  whether  we 
hold  that  the  a'lthority  of  Elyria  is  exclusive  of  Arapahoe 
county,  or  that  they  had  concurrent  jurisdiction,  the  same  con- 
clusion will  be  reached.  If  the  jurisdiction  of  the  town  is 
exclusive,  the  defendant's  license  from  the  county  is  no  de- 
fense to  this  action.  If  the  jurisdiction  of  the  town  and 
county  is  concurrent,  the  defendant  must  procure  a  license 
from  both,  before  he  can  legally  engage  in  the  traffic.  Ileins- 
sen  V.  State,  14  Colo.  228,  and  authorities  there  cited. 

Assuming  that  section  4403,  Mills'  Ann.  St.,  gives  the  town 
exclusive  authority,  it  is  said  that  the  location  of  the  defend- 
ant's place  of  business  makes  Argo  and  Elyria  "adjoining" 
towns,  within  the  purview  of  the  statute,  and  so  takes  this 
caso  out  of  its  operation,  and  revives  the  jurisdiction  of  the 
county  of  Arapahoe.  Without  expressing  an  opinion  upon 
this  point,  it  is  sufficient  to  say  that  the  defendant,  having  no 
license  from  the  town  of  Argo,  can  not  avail  himself  of  this 
defense,  if  any  it  be,  and  this  case  should  be  decided  as  though 
the  town  of  Argo  were  not  in  existence. 

The  attack  upon  the  validity  of  the  ordinance  is  not  suc- 
cessful. The  record  of  February  17,  1891,  is  not  a  model,  but 
it  appears  therefrom,  with  reasonable  certainty,  that  all  the 
members  of  the  town  board  were  present  at  the  meeting,  and 
that  the  entire  six  voted  for  the  ordinance,  upon  its  passage, 
and  that  it  was  passed  unanimously.  The  clerk,  in  writing 
the  record,  confuses  the  dates,  by  making  it  appear  that  the 


i  • 


.M,     .! 


f 


^M^ 


340 


AMERICAN  CRIMINAL  REPORTS. 


onlinanoo  was  passed  August  28, 1890,  instead  of  Fobrnarv  17 
LSDl,  but  a  fair  construction  of  the  entire  record  loavos  no 
doubt  tluit  the  statute  in  question  was  complied  with,  Kven 
if  the  original  record  showed  that  tlio  ordinance  was  iiivulid 
for  the  reasons  alleged,  the  supplemental  record  shows  a  litonil 
and  exact  compliance  with  the  statute.  The  defendant  hiiviii" 
acquired  no  rights  between  the  time  when  the  original  rocoid 
was  made  up  and  the  time  of  the  8upplom(3ntal  rocoid,  iho 
introduction  of  the  latter  in  evidence  was  proper.  Jii-nphij  d. 
ITt/att,  10  Colo.  22(1;  llorr  &  B.  Mun.  Ord.,  §§  58,  .5!),  and  uii- 
thorities  there  cited;  Olti/  of  Solomon  v.  IlmjlwH^  24  Kan.  211; 
Barrv.  Village  of  AuJjuni,  89  111.  301;  Dill.  Mun.  Corp.  (Itli 
Ed.)  §  297.  For  the  reasons  above  stated,  the  judgment  should 
be  reversed. 

Note. — Indictment — Local  option  —  Mileage  limit. — An  indictment  for 
violating  a  local  prohibitory  aot  need  not  rofer  to  tho  statute.  Sliitf  v. 
Snow,  117  N.  C.  778.  Wiien  a  statute  provides  tiiat  in  nil  prosffutioin  I'nr 
sellinjj;  li(iuors  the  court  shall  take  judicial  notice  of  whetlicr  iici-nsi's  ran 
be  lawfully  granted  in  the  county,  and  of  the  result  of  local  option  elec- 
tions, it  is  not  necessaiy  for  the  indictment  to  allege  that  a  local  option 
elocticm  was  held,  resulting  against  the  sale  of  licjuor,  in  order  to  charge 
a  vioiaticm  of  the  law.     State  v.  Bvrtrand,  72  Miss.  510. 

Election. — Where,  for  the  purpose  of  proving  the  charge  in  an  inilict- 
nient  charging  the  defendant  with  committing  the  olfense  of  selling  intox- 
icating li(juors  contrary  to  the  statute,  evidence  is  introduced  tendin;;  to 
prove  the  commission  of  two  or  more  separate  and  distinct  offenses,  it  is 
tiie  duty  of  the  court,  before  the  defendant  is  put  u])on  his  defense,  if 
requested  so  to  do,  to  require  the  prosecution  to  elect  upon  which  tniiisuc- 
tion  the  State  will  rely  for  a  conviction.  State  v.  Bouyhner,  5  S.  Duk. 
401. 

Venue. —  Under  a  statute  providing  that  an  indictment  shall  not  be 
insufficient  for  want  of  proper  or  perfect  venue,  an  attidavit  in  a  prosecu- 
tion before  a  mayor,  charging  the  offense  to  have  been  co'nmitted  in  a  cer- 
tain county  and  district,  was  not  bad  for  failure  to  allege  that  it  was 
committed  within  the  corporate  liinite,  particularly  as  no  objection  was 
made  before  the  jury  was  impaneled.    Burnett  v.  State,  72  Miss.  9!)  1. 

Sale  by  orders. — Defendant  was  a  licensed  dealer  in  liipiors  at  Boston, 
and  was  proprietor  of  parcel  express  wagons.  Persons  living  in  a  district 
wherein  the  sale  of  liquor  was  prohibited  sent  written  orders  to  defendiiut, 
through  his  eniployes,  or  by  depositing  the  orders  at  one  of  the  ex  in  ess 
offices,  instructing  him,  as  their  agent,  to  purchase  and  accept  the  delivery 
of  liquors  from  himself  at  Boston,  and  ship  them  by  express.  The  onlers 
were  accompanied  by  money  for  the  purchase  of  the  liquors,  and  upon 
receipt  thereof  the  liquors  were  set  apart  and  shipped  to  the  respective  cus- 
tomers by  the  express  wagons.  Held,  on  a  prosecution  for  illegally  selling 
liquors  in  said  district  that,  notwithstanding  the  form  of  the  orders,  llure 
was  evidence  from  which  the  jury  might  infer  that  the  delivi-ry  ol  iiie 


STATE  V.  8AWTELLE. 


847 


liouors  wns  mmlo  by  defendant  in  the  prohibited  district.    Com,  v.  Ilitgo 
«<«/.,  lWMa«H.  153. 

lyhereaalecompli-fi'd.—'WhcrB  the  owner  of  a  grocery  store  situated  within 
a  proliibition  district  tiikes  an  order  for  a  jug  of  whixky,  and  hau  it  filled 
without  the  prohibition  district,  but  in  a  liquor  store  of  whicli  lie  is 
a  joint  proprietor,  and  delivers  the  jug  at  his  store,  within  the  prohibition 
diBtrict,  to  the  purchaser,  who  pays  for  it  there,  the  sale  is  completed  within 
the  prohibition  district,  though  the  whisky  was  charged  to  tlie  purchaser 
at  the  liquor  store  outside  of  the  district.    Brooks  v.  Stale,  103  Ala.  Iil8. 

Same.— The  statute  of  Connecticut  of  1888,  authorizes  any  licensed  dealer 
in  spirituous  liquors  to  solicit  and  procure  orders  for  his  go<3ds  in  any 
licensed  town  in  tlie  State.  Act  1889,  p.  113,  provides  that  "  no  person  shall 
act  ns  agent  to  procure  and  deliver  spirituous  and  intoxicating  liquors  to 
any  person  or  lirni  not  legally  authorized  to  sell  the  same,  without  a  writ- 
tun  order,"  etc.  Held,  tluit  the  latter  act  refers  only  to  i)er8on8  acting  aa 
tlu^  agents  of  the  buyer,  and  not  to  one  acting  as  agent  of  the  seller.  State 
V.  Hoja,  66  Conn.  259. 

Validihj  of  local  ofition  latva, — The  legislature  may  lawfully  prohibit  the 
Bale  of  intoxicating  liquors  within  certain  prescril)ed  localities.  »S7a/e  v. 
Barringer,  110  N.  C.  52.5;  State  v.  Snow,  117  N.  C.  774.  A  law  prohibiting 
the  sale  of  intoxicating  licpiors  within  two  miles  of  a  particular  church  is 
valid,  notwithstanding  a  part  of  tlie  territory  so  specified  is  within  the  limits 
of  a  town  whose  charter  had,  prior  to  such  enactment,  empowered  it  to 
licomte  li(|Uor  selling.     Id. 

Conduct  of  court.— It  was  not  error  for  the  court  to  say  to  the  jury,  when 
they  came  back  for  further  instructions,  tliat  he  hoped  they  would  agree 
before  morning,  if  they  conscientiously  could.  Com,  v.  Kelley,  165  Mass. 
175. 

Sa»ie.— Wi-.ere  the  jury  came  back  for  further  instructions,  and  the  court 
gave  them  and  added  that  he  hoped  they  would  agree  before  morning,  but 
as  defendant's  counsel  was  absent,  no  exception  was  taken  to  the  remark 
at  the  time,  it  can  not  be  considered  on  appeal,  though  the  exception  was 
afterward  allowed.    Id, 


!    ! 


;  ti 


'M 


State  v.  Sawtelle. 
(66  N.  H.  488.) 

Jurors:  Right  to  be  tried  by  impartial  jury— Meaning  of  the  term— Elec- 
tion between  counts— Homicide — Evidence — Competency  of  child  aa 
witness — Jurors — Challenge  for  opinion. 


1.  One  can  not  complain  that  telegrams  properly  admissible  against  him 

were  obtained  by  an  order  of  the  court,  the  company  having  refused  to 
produce  them. 

2.  A  finding  that  a  girl  was  a  competent  witness,  made  only  on  her  apjiear- 

ance,  and  her  answers  that  she  was  eight  yeara  old,  had  been  to  school, 


g'-t!  ■. 


3^S 


AMERICAN  ("IRIMINAL  REPORTS. 


i-    !j 

i»   i'i 


'!  ii 


» I"- 


understood  thsit  she  should  be  bound  to  tell  the  trut'.i.  and  that  if  she 
did  not  tell  the  truth,  God  would  punish  her,  is  no*  reviewable. 
8,  Admission  of  testimony  that  tlie  place  where  deceased's  body  was  found 
was  a  solitary,  unfrequented  neighborhood,  and,  that  five  days  after 
the  homicide,  witness  observed  horse  and  wagon  tracks  at  such  place 
is  not  reviewable. 

4.  Refusal  to  compel  the  State  to  elect  between  a. count  for  murder  and  one 

cliarging  defendant  with  being  an  accessory  before  the  fact  is  not 
error. 

5.  The  provision  of  Bill  of  Rights  that  "  it  is  the  right  of  every  citizen  to 

be  tried  by  judges  as  impartial  as  the  lot  of  humanity  will  admit," 
tliough  applying  to  jurors,  does  not  require  the  exclusion  of  a  juror 
who  has  formed  an  opinion  as  to  defendant's  guilt. 

6.  Independently  of ,  as  well  as  under,  act  1754,  providing  that  on  motion  of 

eitlier  party  a  juror  shall  be  required  to  answer  whether  he  has  given  his 
opinion,  or  is  sensible  of  any  prejudice  in  the  cause,  tlie  fact  that  a 
juror  has  formed  an  ojiinion  is  ground  for  challenge  to  the  favor  onlv, 
in  deterrtiining  which  the  fact  that  in  all  the  county  there  are  probalilv 
not  to  be  found  twelve  jurors,  otherwise  competent,  who  have  not 
formed  an  opinion,  is  proi)erly  considered;  and  the  question  whether 
the  juror  stands  indifferent  is  one  of  fact  for  the  trial  court. 

Exceptions  from  Strafford  County. 

Isaac  B.  Sawtelle  was  co.ivicted  of  the  murder  of  his  brother, 
Hiram  F.  Sawtelle.  committed  at  Rochester,  February  o,  IbOu, 
and  excepts.     Exceptions  overruled. 

Kimball,  a  witness  called  by  the  State,  testified  that  he  was 
station  agent  at  Rochester,  and  manager  of  the  Western  Union 
Telegraph  Com])any,  and  produced  a  printed  copy  of  the  fol- 
lowing ride  of  the  company :  "  Whenever  a  manager  or  other 
employe  is  subpoenaed  on  the  part  of  the  sender  or  addressee 
of  a  message  to  produce  it  before  a  court,  or  other  legal  tri- 
bunal, he  will  comply  with  the  subpoena,  and  afterward  return 
the  message  to  the  files;  but  whenever  a  manager  or  other 
emi)loye  is  subpoenaed  on  the  part  of  any  person  other  than 
the  sender  or  addressee  to  produce  a  message,  or  testify  in 
relation  thereto  before  a  court,  or  other  legal  tribunal,  he  will 
take  the  message  into  court,  and  then  submit  to  the  judge  that 
he  ought  not  to  produce  it  or  testify  in  relation  thereto,  and 
that  he  can  not  do  so  unless  a  rule  or  order  of  the  court  be 
entered  requiring  it,  for  the  reason  that  telegraphic  messages 
are  of  a  confidontal  nature,  and  that  the  communication  is 
claimed  to  be  privileged.  If  such  order  be  made  and  entered, 
it  will  be  obeyed,  and  the  clerk  of  the  court  will  then  be  re- 


STATE  V.  SAWTELLE. 


849 


quested  to  furnish  a  copy  of  the  order,  which,  together  with 
the  subpoena,  m  ill  be  filed  with  the  message  to  which  it  relates." 
Being  requested  by  tho  State's  counsel  to  produce  a  telegram 
sent  by  the  defendant  February  4,  1890,  from  Rochester  to 
Hiram,  at  Boston,  and  another  sent  by  the  defendant  February 
5th,  from  Rochester  to  Hiram's  wife,  Jeannette,  at  Boston, 
the  witness  made  the  objection  prescribed  by  the  above  rule. 
The  court  made  the  order  mentioned  in  the  rule,  and  the 
defendant  excepted.  The  witness  produced  the  following 
original  telegrams  called  "  No.  1 "  and  "  No.  3 :" 

No.  1 :  "  Rochester,  4,  '90.  To  II.  F.  Sawtelle,  1275  Wash- 
ington street,  Boston,  Mass.:  Marion  very  sick  abed.  Grippe. 
Feverish  and  growing  worse.  Mother  says  come.  Will  meet 
you  at  depot.    Answer.    Isaac." 

No  3 :  "  Rochester  5,  '90.  To  Jenet  Sawtelle,  1275  Wash- 
ington street,  Boston,  Mass.:  Somewhat  better.  Take  next 
train.    Will  meet  you  depot,  Rochester,  N.  II.    Isaac." 

Home,  a  messenger  in  the  telegraph  office  in  Rochester,  testi- 
fied that  on  the  4th  of  February,  1890,  he  saw  the  defendant 
write  telegram  No.  1  in  the  Rochester  station  and  give  it  to 
the  telegraph  operator;  and  Wilcox,  the  operator,  testified  that 
he  sent  it  the  same  day.  Home  also  testified  that  the  next 
day  the  defendant  wrote  No.  3,  and  Home  gave  it  to  the  oper- 
ator; and  the  operator  testified  that  he  sent  it.  Subject  to  the 
defendant's  exception.  No.  1  and  No.  3  were  aumitted  in  evi- 
dence. 

Jeannette  testified  that  in  the  evening  of  February,  1890, 
"we"  (apparently  meaning  her  husband  and  herself)  received 
No.  1  in  Boston.  A  copy  of  a  message,  called  "  Telegram  No. 
2,"  being  shown  to  Wilcox,  he  testified  that  it  came  to  him 
over  the  wire. 

No.  2 :  *'  Boston,  Mass.,  2,  4,  '90.  Isaac  Sawtelle,  Roch- 
ester, N.  H.:  What  time  and  place  will  you  meet  me  ?  Is  she 
dangerous?    Answer.    Jeannette  Sawtelle." 

Jeannette  testified  that  she  left  No.  2  at  the  telegraph  office 
in  Boston,  late  in  the  night  of  February  4,  1890,  to  be  sent  the 
next  morning  if  she  did  not  then  call  at  the  office.  The 
defendant  objected  to  the  admission  of  No.  2,  on  the  ground 
that  there  was  no  evidence  that  he  received  it.  The  court 
ruled  that  there  was  such  evidence,  and  admitted  No.  2,  and 
he  excepted. 


^•k 


Ct     ■ 


m 


I 


I- 


I; 

I 


IN 


350 


AMERICAN  CRIMINAL  REPORTS. 


j\rarion  Sawtelle,  a  girl  evidently  less  than  fourteen  years 
of  litre  (daugliter  of  Hiram  and  Jeanette),  being  called  as  a 
witness  by  the  State,  the  defendant  objected  to  her  bein^ 
sworn.  In  answer  to  questions  by  the  court,  she  said :  "  I  am 
eight  years  old.  Have  besn  at  school — the  Winthrop  street 
school.  Went  to  school  last  summer.  Understand  that,  as  a 
witness,  I  should  be  bound  to  tell  the  truth.  If  I  did  not  tell 
the  truth,  God  would  punish  me."  No  questions  were  pro- 
posed by  counsel,  and  no  other  evidence  than  her  answers  and 
appearance  was  offered  on  the  question  of  capacity  and  under- 
standing. The  court  found  that  she  was  competent,  and 
allowed  her  to  bo  sworn  and  to  testify,  and  the  defendant 
excepted. 

February  14, 1890,  a  headless  corpse  was  found  buried  in  the 
woods  in  Lebanon  Me.,  several  miles  from  Ilochester.  Tliere 
was  evidence  tending  to  show  it  to  be  the  body  of  Ilh-ani. 
Subject  to  the  defendant's  exception,  E.  Pierce  testified  that 
in  summer  not  more  than  a  dozen  teams  a  month  ])assod  over 
the  road  near  the  grave,  and  that  there  was  very  little — some- 
times not  any — travel  there  in  winter. 

There  was  evidence  tending  to  show  that  late  in  the  after- 
noon of  February''  5,  1890,  the  defendant  carried  Hiram  in  a 
buggy  from  Rochester  village,  on  the  i-oad  that  passes  by  the 
Morrill  barn,  and  killed  him  at  or  near  the  barn.  Subject  to 
the  defendant's  exception,  W.  Bunnell  testified  that  on  the 
10th  day  of  February,  1890,  he  saw  th(;  tracks  of  a  horse  and 
wagon  near  the  barn;  that  the  tracks  went  through  tiie  liars, 
slanting,  as  if  coming  from  the  direction  of  Ilochester  vilhif^e, 
and  turned  round,  near  the  back  side  of  the  barn,  toward  the 
bars. 

Judgment  was  rendered  on  a  verdict  of  guilty,  and  the  defend- 
ant filed  this  bill  of  exceptions,  which  is  allowed. 

On  two  other  grounds  the  defendant  moved  to  set  aside  the 
verdict.  There  was  no  probability  that  twelve  jurors,  (itial- 
ified  in  other  respects,  could  be  found  in  the  county  who  Iiad 
not  formed  an  opinion  that  the  defendant  was  guilty  of  mur- 
der in  New  Hampshire  or  Maine.  If  all  who  had  formed  such 
an  opinion  were  rejected,  he  could  not  be  tried.  The  common 
law  rule  and  the  meaning  of  the  statute  were  taken  to  be  that 
in  all  cases,  civil  and  criminal,  each  party  is  entitled  to  a  fair 
trial;  that  a  man  is  not  disqualified  to  be  a  juror  by  an  opin- 


STATE  V.  SAWTELLE. 


351 


ion  formed  upon  hearsay,  oral  and  printed,  if  he  can  and  willtr3'- 
the  case  solely  upon  the  evidence,  according  to  his  oath,  unin- 
fluenced by  that  opinion  or  that  hearsay;  that  the  trial  is  not 

n  Icred  unfair  by  the  opinion  or  the  hearsay,  if  they  will  not 
iitfect  the  verdict. 

In  challenges  for  cause  the  defendant  was  limited  to  the 
rit^ht  of  a  fair  trial  without  the  latitude  generally  allowed  in 
civi  '  riminal  cases  where  there  is  no  difficulty  in  procur- 
ino- jurors  who  have  not  formed  an  opinion,  and  have  not 
heard  much  concerning  the  case.  All  jurors  returned  were 
informed  at  the  outset  that  those  who  tried  the  case  would  bo 
s„ota  to  try  it  according  to  law  and  the  evidence.  Full 
e:;p'  uiation  was  given  of  the  duty  of  deciding  exclusively 
upon  legal  evidence  given  by  sworn  witnesses  on  the  stand, 
and  discarding  all  hearsay  and  previous  opinion;  and  during 
the  impanelment  the  explanation  was  several  times  repeated, 
with  due  emphasis,  in  different  forms,  and  with  specific  appli- 
cations. A  juror,  who  had  been  examined  by  the  court,  and  had 
sworn  that  he  would  try  the  case  on  the  evidence  alone,  unbi- 
ased by  his  previous  opinion,  being  examined  by  the  defend- 
ant's counsel,  said  the  opinion  he  had  formed  was  so  strong 
that  it  would  require  evidence  to  change  it.  The  court  under- 
stood his  meaning  to  be  that  in  the  exercise  of  the  right  of 
free  thought,  and  aside  from  a  juror's  obligations,  his  opinion 
would  not  be  changed  unless  it  was  shown  to  be  wrong  or 
groundless;  and,  on  being  again  questioned  by  the  court,  he 
said,  if  he  tried  the  case  as  a  juror  he  should  do  his  duty 
according  to  the  explanation  that  had  been  given  of  it.  The 
court  found  him  competent,  and  he  and  another,  who  gave 
similar  answers,  were  impaneled  with  others  who  were  not 
asked  whether  evidence  would  be  required  to  change  their 
opinions,  but  who,  undoubtedly,  would  have  made  similar 
answers. 

There  was  a  second  count,  under  General  Laws,  c.  284,  §  3, 
charging  the  defendant  as  accessory  before  the  fact,  in  New 
Hampshire,  to  the  murder  of  Hiram,  committed  in  Maine  by 
some  person  unknown.  The  court  denied  the  defendant's 
motion  to  require  the  State  to  elect  on  which  count  the  defend- 
ant should  be  tried.     The  verdict  was  on  the  first  count, 

D.  Baruai'd,  Attorney-General,  and  J.  Kivel,  Solicitor,  for 

the  State. 


mi\i 


■jl 


H 


I 


852 


AMERICAN  CRIMINAL  REPORTS. 


J.  A.  Edgerly^  J.  11.  'Worcester  and  G.  F.  Haley,  for  defend- 
ant. 

Cakpenter,  J.  Whether  the  rule  of  the  telegraph  company 
is  a  reasonable  one,  and  whether  the  court  might  jiroperly  have 
compelled  the  witness  to  produce  the  telegrams,  without  mak- 
ing the  order  required  by  the  rule,  are  questions  that  need  not 
be  considered.  Hall  v.  Young,  37  N.  H.  134,  U2.  The 
method  of  procuring  the  telegrams  did  not  concern  the  defend- 
ant. It  was  immaterial  to  him  whether  the  witness  produced 
them  voluntarily,  in  compliance  with  a  rule  of  the  company,  or 
involuntarily,  under  an  order  of  court  made  in  defiance  of  the 
rule. 

The  telegrams  were  properly  received  in  evidence.  They 
were  sufficiently  identified.  They  were  competent  for  the  jury 
to  consider,  in  connection  with  other  evidence,  as  tending  to 
show  that  Hiram  was  in  Rochester  February  5th,  and  why  he 
went  there.  The  defendant's  telegram  No.  3  was  evidence  of 
his  receipt  of  telegram  No.  2. 

Whether  Marion  Sawtelle  was  a  competent  witness  was  a 
question  of  fact.  The  finding  of  the  court  was  made  upon 
competent  and  sufficient  evidence,  and  is  not  revisable.  Cad- 
ton  V.  Carlton,  40  N.  H.  14,  18-20;  Bay  v.  Bay,  5G  N.  II.  316; 
Free  v.  BucHngham,  59  N.  II.  219,  226. 

The  testimony  of  Pierce,  that  the  place  where  Hiram's  body 
was  found  was  in  a  solitary,  unfrequented  neighborhood,  and 
of  Bunnell,  that  five  days  after  the  homicide  he  observed 
horse  and  wagon  tracks  at  the  place  whore  it  was  committed, 
was  not  incompetent.  An  objection  to  evidence  on  the  ground 
of  remoteness  ro.ises  no  question  of  law,  but  one  of  fact,  to  the 
determination  of  which  at  the  trial  term  no  exception  lies. 
/State  V.  Boston  (&  Maine  Railroad  Co.,  58  N.  II.  410;  Morrill 
V.  Warner,  66  N.  11.,  post. 

No  error  of  law  was  committed  by  the  denial  of  the  defend- 
ant's motion  that  the  State  be  required  to  elect  on  which  count 
the  trial  should  be  had.  State  v.  Marvin,  35  N.  II.  22,  20; 
State  V.  Lincoln,  49  N.  II.  464,  471;  Com.  v.  Hills,  10  Cush. 
530;  Com.  v.  Slate,  11  Gray,  60;  Com.  v.  Sullivan,  104  ]!ilass. 
552;  1  Chit.  Cr.  Law,  253. 

The  defendant  took  no  exception  to  the  impaneling  of  the 
jurors  whose  competency  is  now  questioned,  and  by  not  except- 


STATE  V.  SAWTELLE. 


353 


ix\cr  waived  all  objection  to  them.  Temple  v.  Sumner^  Smith 
(n!  H.),  226,  233;  Rollma  v.  Ames,  2  N.  11.  349,  351;  State  v. 
Ilascall,  6  K  H.  352,  360;  State  v.  Hand,  33  N.  H.  216;  State 
V.  Flanders,  38  N.  H.  324.  But  the  trial  court,  of  its  own 
motion,  and  without  the  suggestion  of  either  party,  may,  if  it 
tliink  fit,  reserve  a  question  of  law  for  consideration  at  the 
law  term.  Gen.  Laws,  c.  208,  §§  5,  11;  Steele  v.  Bates,  2 
Aiken,  338. 

*'  It  is  essential  to  the  preservation  of  the  rights  of  every 
individual,  his  life,  liberty,  property  and  character,  that  there 
be  an  impartial  interpretation  of  the  laAvs  and  administration 
of  justice.  It  is  the  right  of  every  citizen  to  be  tried  by 
judges  as  impartial  as  the  lot  of  humanity  will  admit."  Bill 
of  Rights,  art.  35.  The  guaranty  applies  to  jurors  as  well  as 
judges.  Temple  v.  Smnner,  Smith  (N.  II.),  226,  227;  State  v. 
Webster,  13  N.  II.  491,  492.  It  is  an  affirmation  of  the  com- 
mon law.  Sanborn  v.  Fellows,  22  N.  II.  473,  486;  Moses  v. 
Julian,  45  N.  II.  52,  54,  55;  In  re  School  Law  Manual,  63  N^. 
H.  574.  570;  State  v.  Wilson,  38  Conn.  120,  137;  Spies  v.  Illi- 
nois, 123  U.  S.  131,  169,  170;  Cooley,  Const.  Lira.  (4th  Ed.), 
395,  It  presupposes  that  unqualified  disinterestedness  may 
be  irai)ossible  of  attainment.  Com.  v.  Worcester,  3  Pick.  402, 
471,  472.  The  framers  of  the  constitution  did  not  intend  that 
private  right  should  be  incapable  of  vindication,  or  that  crime 
should  go  unpunished,  whenever,  under  the  frame  of  govern- 
ment by  them  ordained,  an  absolutely  indifferent  tribunal  for 
the  enforcement  of  law  could  not  be  obtained.  "  A  minute, 
theoretic  and  remote  interest,  arising  from  a  possible  partici- 
pation in  penalties  either  payable  to  the  town,  county  or  State, 
does  not  disqualify  one  from  acting  as  a  judge,  when  all  are 
so  interested  who  can  act,  and  when  the  law  would  remain 
unexecuted  without  it."  Com.  v.  Emery,  11  Cush.  406,  411. 
Nor  does  such  an  interest  in  a  like  case  disqualify  a  juror. 
Com.  V.  Ryan,  5  Mass.  90,  92;  Moses  v.  Julian,  45  N.  H.  52, 
55.  An  act  providing  that  "  in  indictments  and  penal  actions 
for  the  recovery  of  any  sum  of  money,  or  other  thing  for- 
feited, it  shall  not  bo  a  cause  of  challenge  to  any  juror  that 
he  is  liable  to  pay  taxes  in  any  county  or  town  which  may  be 
benefited  by  such  recovery,"  is  not  a  violation  of  the  Massa- 
chusetts (declaration  of  rights,  assuring  to  every  citizen  "  the 
right  to  be  tried  by  judges  as  free,  impartial  and  independent 


I^'i 


ill 


MJ 


it 


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im 


864 


AMERICAN  CRIMINAL  REPORTS. 


as  the  lot  of  humanity  will  admit."  Com.  v.  Heed,  1  Gray 
472. 

In  Vermont  a  justice  of  the  peace  may  properly  try  and 
convict  a  defendant,  and  impose  on  him  a  line  payable  to  tlie 
town  of  which  the  justice  is  a  rutod  inhabitant,  notwithstand- 
ing H  provision  of  the  statute  that  "  no  justice  of  the  i)eace 
shall  take  cognizance  of  any  cause  where  he  shall  be  directly 
or  indirectly  interested  in  the  cause  or  matter  to  be  tried." 
State  V.  Batckelde)',  6  Vt.  479.  The  court  say  (page  486): 
"  Nothing  is  more  true  in  theory  than  that  every  judge  and  jus- 
tice who  tries  a  cause  should  not  have  the  slightest  interest  in 
its  determination,  and  notiiing  more  true  in  fact  and  in  practice 
than  that,  as  it  respects  State  cases  in  general,  there  is  no  such 
judge  or  justice  in  Vermont.  Still  criminal  justice  must  be 
administered.  Every  magistrate,  like  other  citizens,  is  a  stock- 
holder, as  it  respects  the  funds  of  the  State,  and  subject  to  ])ro- 
portional  loss  or  gain  by  public  prosecutions.  Yet  this  trijiinff 
State  interest,  in  effect,  is  just  nothing."  On  the  same  ground, 
it  is  held  that  a  juror  is  not  disqualified  by  a  like  interest, 
though  the  Constitution  secures  a  trial "  by  an  impartial  jury." 
Mlddletown  v.  Ames,  7  Vt.  106,  1G8,  169. 

"  In  actions  for  the  recovery  of  any  penalty  before  a  justice, 
it  shall  be  no  cause  of  exception  that  such  justice  resides  or 
has  property  within  the  town  in  which  the  offense  was  com- 
mitted, nor  that  the  penalty  or  any  j)art  thereof  may  belong 
to  such  town."  Gen.  Laws,  c.  'iOfJ,  §  S.  This  act  has  been  in 
force  since  1843  (Rev.  St.,  c.  211,  §6),  and  its  validity  has 
never  been  questioned.  Nearly  all  the  fines  imposed  by  police 
courts  are  paN'^able  to  the  towns  where  the  courts  are  hold,  and 
in  which  the  justices  reside.  (Jen.  Laws,  c.  2ii8,  §  7.  Objec- 
tion for  this  cause  to  the  justice's  juristliction  has  never  been 
taken. 

In  M.  J.  J.  V.  J.  a  B.,  47  N.  II.  a(i2.  SC>H.,  it  was  held  that  a 
justice  of  the  peace  is  not  disabled  by  his  interest  as  a  citizen 
and  taxpayer  of  the  county  from  trying  a  bastardy  case,  at 
the  complaint  of  a  count}'  pauper,  on  the  ground  that  his  in- 
terest is  "too  remote  and  minute  to  discjualify  him,"  and  "to 
deny  his  authority  to  act  in  such  a  case  might  *  *  * 
leave  the  law  unexecuted."  Whether,  in  such  case,  a  justice 
resident  in  an  interested  town  would  be  disqualified  because 
"  it  would  be  easy  to  obtain  a  disinterested  magistrate  from 


STATE  V.  SAWTELLE. 


355 


some  town  in  the  vicinity  "  (41  "N".  II.  369),  has  not  been  deter- 
mined. Warren  v.  Glynn,  37  N.  H.  340;  Gihnanton  v.  Ilam^ 
38  N.  H.  108;  Iloit  v.  Cooper,  41  N.  II.  Ill,  115. 

Although  "  the  smallest  pecuniary  interest  in  the  result  of  a 
cause  disqualifies  a  juror"  {Piiffe  v.  Railroad  Co.,  21  N".  II. 
438),  jurors  constantly  sit  in  the  trial  of  otlenders  punishable 
by  fine  payable  to  the  county.  Exception  to  them  on  the 
cround  that,  as  taxpayers  resident  in  the  county,  they  are 
interested  in  the  result,  has,  it  is  believed,  never  been  taken. 
If  the  objection  were  tenable,  the  administration  of  the  law 
would,  in  such  cases,  be  impossible.  No  offender  punishable 
by  fine  or  even  by  imprisonment  in  jail,  could  be  convicted. 
The  State  can  not  have  a  change  of  venue,  except  in  the  extra- 
ordinary case  of  a  general  insurrection.  Unless  the  defendant 
asks  for  a  change  of  venue  {State  v.  Alice,  61  N.  II.  423),  he 
can  not  be  tried  "in  any  other  county  than  that  in  which" 
the  ofi'ense  was  committed.     Bill  of  Eights,  Art.  17. 

"During  the  earliest  ages  of  our  judicial  history,  juries  were 
selected  for  the  ver}"^  reasons  which  would  now  argue  their 
unfitness,  videlicet,  their  personal  acquaintance  with  the  par- 
ties and  the  merits  of  the  cause;  and  few  rules  of  law  were 
enforced  with  greater  strictness  than  those  which  required 
that  the  venue,  visne,  or  vieinettim — in  other  words,  the  neigh- 
borhood whence  the  juries  were  to  be  summoned — should  be 
also  that  in  whicli  the  cause  of  action  had  arisen,  in  order  that 
the  jury,  who  were  to  determine  it  principally  from  their  own 
private  knowledge,  and  who  were  liable  to  be  attainted  if  they 
delivered  a  wrong  verdict,  might  be  persons  likely  to  be 
acquainted  with  the  nature  of  the  transaction  th<\v  were  called 
upon  to  try.  *  *  *  In  order  t«>  ell'ect  this  end,  the  parties 
htiffant  were  required  lo  state  in  their  pleadings,  with  the 
utmost  certainty,  not  merely  the  county,  but  the  very  venue, 
i.  e.,  the  vcr}'  district,  hundred,  or  vill  within  that  county 
where  the  facts  that  they  alleged  had  taken  place,  in  order 
that  the  sheriff  might  be  directed  to  summon  the  jur}'  from  the 
proper  neighhorliood  in  case  issue  should  be  taken  on  any  of 
such  allegations.  *  «  *  Anciently,  the  jury,  in  order  tuat 
they  might  be  persons  well  acquainted  with  the  controversy, 
were  summoned  out  of  the  very  hundred  designated  for  the 
venue.  Afterward  the  rule  was  i*elaxed,  and  in  the  reign  of 
Edward  the  Third,  it  was  sufficient  if  the  jury  contained  six 


1' " 

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356 


AMERICAN  CRIMINAL  REPORTS. 


hundredors.  Gilb.  Com.  PI.  c.  8.  This  number  was,  in  Ilenrv 
the  Sixth's  reign,  reduced  to  four.  Fort,  de  Laud.,  c.  25.  It 
was  afterward,  by  St.  35  lien.  VIII.,  c.  0,  restored  to  six.  St. 
27  Eliz.,  c.  G,  reduced  it  to  two;  and  so  the  law  remained  till 
long  after  St.  10  and  17  Car.  II.,  c.  8,  after  which  act  it  wis 
still  necessary  that  two,  at  least,  of  the  jurors,  should  be  sum- 
moned from  the  hundred  laid  in  the  declaration,  and  if  there 
were  not  so  many  it  was  cause  of  challenge.  But  this  last 
remnant  of  the  ancient  strictness  was  abolished  by  4  and  5 
Anne  [A.  D.  1706-7],  c.  6,  except  so  far  as  concerned  actions 
founded  upon  penal  statutes,  to  which  the  abolition  was  ex- 
tended by  24  Geo.  II.  [A.  D.  1751],  c.  18.  So  that  now  it  is. 
in  all  cases,  sufficient  if  the  jury  be  summoned  de  corpwecom. 
ifatus,i.  <?.,  from  the  body  of  the  county  in  which  the  venue  is 
laid  by  the  declaration."     1  Smith,  Lead.  Cas.  3(!3,  365. 

"  *  T7t'm<.'<w?M '  is  derived  of  this  word  ^vwinitu,^  and  siir- 
nifieth  neighbourhood,  or  a  place  neere  at  hand  or  a  neighbour 
place.  And  the  reason  wherefore  the  jury  must  be  of  the 
neighbourhood  is  for  that  vicimis  facta  vlcini  jrm'Huinitur 
scire;  all  which  is  implied  in  this  word."  Co.  Litt.  15Sb; 
Bac.  Abr.  "  Juries,"  E,  4.  "  By  the  ])olicy  of  the  ancient  law, 
the  jury  was  to  come  de  vicineto,  from  the  neighbourhood  of 
the  vill  or  place  where  the  cause  of  action  was  laid  in  the 
declaration;  and  therefore  some  of  the  jury  were  obliged  to 
be  returned  from  the  hundred  in  which  such  vill  lay,  and  if 
none  were  returned  the  array  might  be  challenged  for  defect 
of  hundredors.  *  *  *  For,  living  in  the  neighbourhood, 
they  were  properly  the  very  country  or  ^>a/.«  to  which  both 
parties  had  appealed,  and  were  supposed  to  know  beforehand 
the  characters  of  the  parties  and  witnesses,  and  therefore  they 
better  knew  what  credit  to  give  to  the  facts  alleged  in  evi- 
dence. But  this  convenience  was  overbalanced  b}'  another 
very  natural  and  almost  unavoidable  inconvenience — tliat 
jurors  coming  out  of  the  immediate  neighbourhood  would  be 
apt  to  intermix  their  prejudices  and  partialities  in  the  trial  of 
right."  3  Bl.  Comm.  359,  360;  1  Starkie,  Ev.  22.  It  was 
because  of  this  inconvenience,  says  Blackstone,  that  the  law 
requiring  jurors  to  come  from  the  particular  vicinage,  and 
that  some  of  them  should  be  hundredors,  was  linally  re- 
pealed. 


STATE  V.  SAWTELLE. 


357 


Knowledge  of  the  facts  upon  which  the  issue  is  to  be  tried 
(lopended,  a»d  the  necessarily  consequent  impression  or  opin- 
ion on  the  merits,  so  far  from  being  an  objection  to  a  juror 
were  a  desirable  qualiiication.  Until  17<>0  a  presumed  knowl- 
edo-c  in  at  least  two  of  the  twelve  was  essential.  The  only 
reason  for  requiring  hundredors  to  be  of  the  jury  was  because 
of  their  supposed  bettor  knowledge  of  the  facts.  If,  after 
the  juror  was  summoned,  and  before  he  was  sworn,  he  I'e- 
movod  from  or  .alienated  his  lands  in  the  hundred,  he  was  not, 
for  that  reason,  liable  to  challenge,  because  by  his  removal  or 
by  his  alienation  of  his  land  his  "knowledge  can  not  be  di- 
vested out  of  his  person."  21  Hen.  VI.,  p.  31),  pi.  4;  14  lien. 
VII.,  p.  2,  pi.  C;  Fitzh.  Abr.  "  Challenge,"  OS;  Brooke,  Abr. 
"Challenge,"  05,  71;  Dyer,  3l()b.  If  the  issue  was  parcel  or 
not  parcel  of  a  manor,  or  ui)on  a  custom  of  the  manor,  the  jury 
should  come  of  the  manor,  because  they  best  know  the  extent 
of  the  manor  and  its  customs.  Moore  v.  Goodf/anie,  Cro.  Jac. 
327;  Si/ino/Kh  v.  Jiudoio,  Id.  405;  Trials  per  Pais  (Sth  Ed.), 
135;  0  Coke,  14b. 

In  assize  the  recovery  was  often  had  p<'/'  vlmim  jurafornm. 
Co.  Litt.  15Sb;  1  Keeve,  Eng.  Law,  ;>2(»,  327.  If,  in  a  subse- 
quent real  action,  a  former  recovery  was  pleaded  and  the 
phiintiif  replied  that  the  land  in  issue  was  not  the  same,  or 
parcel  of  the  same  lands,  the  question  was  tried  by  the  jurors 
of  the  Hrst  trial,  or  by  such  of  them  as  were  living  and  could 
be  obtained,  impanele*!  with  others.  Trials  per  Pais  (Sth  Ed.), 
9(],  i)7;  21  Vin.  Abr.  71-73;  1  Burrows,  252-258.  They  who 
tried  the  first  issue — viewed  the  land  and  examined  the  bounds 
—were  better  qualified  than  strangers  could  be  upon  testimony 
laid  before  them  to  determine  whether  the  land  sued  for  in 
the  second  action  was  the  same,  on  a  part  of  the  same  land,  if 
they  had  no  motive  to  favor  either  ])arty.  If  a  juror  had 
such  motive,  as  if  he  were  interested  in  the  result  of  the  second 
action,  he  was  rejected,  anc'  a  stranger  called  in  his  place.  4 
lien.  VI.,  p.  2S,  pi.  12.  I:,  u,  writ  of  right,  the  four  knights 
summoned  to  select  the  jurors  were  sworn  "  to  choose  twelve 
knights  girt  with  swords  of  themselves,  and  others  which  best 
know  and  will  declare  the  truth  between  the  parties."  22 
Edw.  III.,  pp.  17, 18;  7  Hen.  IV.,  p.  20,  pi.  28;  Tijssoi  v.  Clarke, 
3  Wils.  541,  500.  "Less  than  a  hundred  years  ago,  in  Eng- 
land, it  was  usual  to  try  mercantile  cases  before  a  special  jury, 


358 


AMERICAN  CRIMINAL  REPORTS. 


who  spoke  to  the  custom  of  merchanis  of  tlioir  own  knowl- 
0  Ige."  7  Am.  Law  Kev.  658;  Carvkh  v.  Viekei'i/,  Dou'>.  053 
054,  note. 

A  jury  was  summoned  for  the  trial  of  each  cause,  and  each 
of  several  issues  in  the  same  cause,  if  taken  upon  matters 
aiising  in  different  counties — as  if,  for  example,  in  a  real 
action  by  two  coparceners  the  defendant  pleads  title  to  one 
and  to  the  other  a  release  made  in  another  county,  or,  in  tres- 
pass de  honis,  if  the  defendant  justilies  the  takin<^  of  parcel  in 
one  county  and  parcel  in  another  county.  10  Hen.  VI.,  pp.  y, 
10,  pi.  35;"  33  Hen.  VI.,  p.  55,  ])1.  47;  Fitzh.  Abr.  "  Judgment,"' 
13,39;  Brooke,  Abr.  "Damages,"  135;  II  "Costs,".3;  1  Smith 
Lead.  Cas.  304.  Altliough,  by  the  words  of  the  writ  of 
venire  facias,  the  sheriff  was  commanded  to  return  12  jurors 
only,  "yet  by  ancient  course  tlie  sherifo  must  return  21;  ami 
this  is  for  expedition  of  justice;  for  if  12  should  onley  be 
returned,  no  man  should  have  a  full  jury  appear  or  be  sworn 
in  respect  of  challenges,  without  a  tales,  which  should  be  a 
great  delay  of  tryals."  Co.  Litt.  155a.  By  reason  of  "the 
partiality  found  among  them,  neighbours  having  generally  a 
particular  attachment  to  one  party  more  than  anotiier"  (Hac. 
Abr.  "Juries,"  E.  4),  kinship,  personal  enmities,  and  various 
other  disqualifications  (Co.  Litt.  15r)a-15Sb;  3  Bl.  Comni.  35S- 
305),  this  number  was  often  found  insuiticient,  and  it  became 
necessary  to  summon  other  jurors,  called  the  "  tales,"  to  make 
up  the  deficiency.  Id.  305,  note  8.  This  caus3d  delay  and 
expense.  As  long  as  so  few  jurors  were  summoned,  and  tiiey 
were  required  to  come  from  the  immediate  neighborhood  where 
the  facts  occurred  upon  which  issue  was  taken,  and  where  gen- 
enrally  the  parties  and  their  witnesses  resided,  it  was  essential 
to  the  due  administration  of  justice  that  a  juror  should  not  be 
set  aside  unless,  upon  objection  taken,  he  was  Pound  to  be 
legally  disqualifiexl.  Hence  it  is  that  nearly  all  the  very 
numerous  decisions  on  the  subject  in  civil  cases  were  made  before 
the  statute  of  3  Geo.  II.  (1730),  c.  25.  That  act  required  that 
not  less  than  48  nor  more  than  72  jurors  should  be  returned 
from  the  body  of  the  county  for  the  trial  of  all  issues  at  tlie 
same  assizes,  and  that  from  them  the  jurors  for  the  trial  of 
each  cause  should  be  selected  by  lot.  21  Vin.  Abr.  213-21C; 
Bac.  Abr.  "  Juries."  B.  F.  2,  3,  6;  Trials  per  Pais  (Sth  Ed.), 
146-103.    It  had  no  application  to  criminal  cases. 


STATE  V.  SAWTELLE. 


359 


As  counsel  suggest,  it  is  by  examination  of  the  ancient  rather 
than  the  motlern  books  that  the  common  law  of  disqualifica- 
tion of  jurors  and  of  challenge  is  best  determined,  and  the  old 
cases  cited  from  the  Year  Cooks  and  other  reports  have  there- 
fore been  examined. 

Challenges  propter  affectum,  were  of  two  kinds :  (1)  For 
principal  cause;  and  (2)  to  the  favor.  A  challenge  is  called 
principal  "  because  if  it  be  found  true,  it  standeth  sufficient  of 
itselfe,  without  leaving  anything  to  the  conscience  or  discre- 
tion of  the  triors."  Co.  Litt.  156b.  It  is  "the  naming  of 
some  exception,  which  being  found  true,  the  law  presently 
allows."  Term,  de  la.  L.  "  Cliallenge; "  Temple  v.  Sumne?', 
Smith  (N.  II.)  22G,  228;  State  v.  Houuml,  17  K  II.  171,  191. 
It  admits  of  no  answer,  counterplea,  or  qualification.  If  it  be 
for  kindred,  it  is  immaterial  that  the  juror  is  also  of  kin, 
thoufjfh  in  a  nearer  degree,  to  the  other  party,  or  that,  notwith- 
standing the  kinship,  the  triors  find  him  to  be  in  fact  indiffer- 
ent. 7  Edw.  IV.. p.  4,  pi.  12;  Brooke,  Abr.  "Challenge,"  167; 
Co.  Litt.  157a;  Hum<1on  v.  liidcr,  Cro.  Eliz.  663;  21  Vin.  Abr. 
237,  238.  No  evidence  is  heard  or  considered,  except  such  as 
tends  to  show  the  existence  or  non-existenco  of  the  particular 
fact  alleged  as  the  ground  of  the  challenge.  The  triors  are 
sworn  to  well  and  truly  try  whether  the  juror  is  a  cousin,  serv- 
ant or  tenant,  etc.,  as  the  case  may  be,  of  the  party.  Barrett 
V.  long,  3  II.  L.  Cas.  395,  400;  Hex  v.  Dolby,  1  Car.  &  K.  238. 
A  fact  which,  if  established,  was  not,  in  judgment  of  law, 
inconsistent  with  indifference,  which  admitted  of  qualification, 
and  might  bo  explained  away  by  other  evidence,  was  never  a 
ground  of  principal  challenge. 

Challenge  Xo  the  favor  "is  when  the  party  alledges  any  such 
exception  against  one  or  more  of  the  jurors,  which  is  not  forth- 
with sufficient  upon  acknowledgment  of  the  truth  thereof, 
but  rather  arbitrable  and  considerable  by  the  rest  of  the  jurors; 
as  if  the  sons  of  the  juror  had  married  the  daughter  of  the 
adverse  party."  Term,  de  la  L.  "  Challenge."  It  "  sheweth 
causes  of  favour  which  must  be  left  to  the  conscience  and  dis- 
cretion of  the  triors  upon  hearing  their  evi<lence  to  find  him 
favourable  or  not  favourable."  Co.  Litt.  157b;  Templev.  Sximner 
and  State  v.  Howard,  supra.  It  raises  no  question  of  law,  but 
the  question  of  fs.ct  whether  the  juror  stands  indifferent 
between  the  parties.    "  The  causes  of  favour  are  infinite."   Co. 


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AMERICAN  CRIMINAL  REPORTS. 


Litt,  157b.  In  this  for.n  of  challenge,  probable  circumstances 
of  suspicion,  such  as  great  intimacy  with  one  party,  or  strife 
and  quarrels  with  the  other,  any  acts  or  sayings  indicating 
affection  for  one  or  malevolence  toward  the  other;  in  short, 
anything  tending  to  show  a  motive  on  the  part  of  the  juror  to 
favor  one  party  or  to  wrong  the  other,  may  be  alleged  and 
proved.  Evidence  in  rebuttal  of  the  allegations,  or  qualifyinj;,' 
and  explaining  them,  may  be  adduced  by  the  opposite  party, 
and,  upon  the  whole  evidence,  it  is  to  be  found  whether  the 
juror  "stands  indifferent  as  he  stands  unsworn."  The  triors 
are  sworn  "  to  well  and  truly  try  whether  the  juror  stands 
inditferent  between  the  parties,  and  thereof  a  true  verdict  give 
acconling  to  the  evidence."  26  How.  State  Tr.  1227;  1  Sulk. 
1.52;  Joy,  Chal.  222. 

"  When  any  challenge  is  made  to  the  polls,  two  triors  shall 
bee  appointed  by  the  court,  and  if  they  trie  one  indifferent, 
and  he  be  sworne,  then  he  and  the  two  triors  shall  try  another; 
and  if  another  be  tried  indifferent,  and  he  be  sworne,  then  the 
two  triors  cease,  and  the  two  that  be  sworne  on  the  jury  shall 
try  the  rest."  Co.  Litt.  15Sa.  To  triors,  if  demanded,  the 
parties  were  legally  entitled.  O'  Cohjhfs  Case,  20  How.  State 
Tr.  1218-1220;  Ehnonds''  Case,  1  State  Tr.  (N.  S.)  792,  note. 
But  the  facts  alleged  as  principal  cause  were  often  not  in  dis- 
pute. By  consent,  challenges  in  both  forms  were  sometimes 
tried  by  the  court.  A  neglect  to  ask  for  triors  was  ai>i)ar- 
ently  deemed  such  consent.  Objections  going  to  the  favor 
only  were  not  infrequently  submitted  to,  and  the  juror  with- 
drawn without  a  trial.  21  Vin.  Abr.,  p.  270,  pi.  6;  9  How.  State 
Tr.8-11;  Id.  1057-1001;  13  How.  State  Tr.  1108;  16  How.  State 
Tr.  130-138;  18  How.  State  Tr.  1233;  22  How.  State  Tr.  1039; 
20  How.  State  Tr.  1223;  31  How.  State  Tr.  1172, 1173;  1  State 
Tr.  (N.  S.)  1034;  Joy,  Chal.  191-193;  2  Rolle,  Abr.  660. 

The  common  law  on  this  subject,  as  upon  all  others,  is  natural 
law.  It  recognizes  the  weaknesses  of  all  mankind — the  effect 
of  blood  affection,  interest,  malice,  ill  will,  or  other  motive 
upon  their  discernment  of  right  and  wrong — and  eliminates 
them,  so  far  as  '•  the  lot  of  humanity  will  admit,"  from  its 
judgments.  It  permits  no  one  who,  from  any  cause,  has  a 
motive  or  inducement  to  favor  one  party  or  wrong  the  other 
to  sit  in  judgment  upon  their  rights.  It  "has  so  watchful  an 
eye  to  the  pure  and  unbiased  administration  of  justice  that  it 


m 


STATE  V.  SAWTELLE. 


861 


will  never  trust  tlie  passions  of  mankind  in  the  decision  of  any 
matter  of  right."  lleskcthv.  Braddoeh,  3  Burrows,  1847, 1856. 
"  I  know  this,"  said  Sir  John  Scott  (subsequently  Lord  Eldon), 
attorney-general  in  O'Uoigly's  Case,  20  How.  State  Tr.  1223, 
"  that  we  live  in  a  country  whose  government  and  Constitu- 
tion is  not  worth  supporting,  if  it  be  possible  that  any  trial  of 
men  for  their  lives  can  be  conducted  with  the  concurrence  of 
those  to  whom  is  intrusted  the  administration  of  justice  under 
circumstances  that  shall  leave  upon  the  mind  of  any  honest 
man  a  doubt  whether  the  prisoners  tried  for  their  lives  have 
been  justly  tried  or  not." 

In  ancient  times  the  law  esteemed  those  who,  being  without 
motive  to  favor  either  party,  had  immediate  and  personal 
knc  'ledge  of  the  facts  in  dispute  to  form  the  best  conceivable 
tribunal  for  the  determination  of  the  issue.  It  held  that 
twelve  perfectly  impartial  witnesses  .of  a  transaction  were  bet- 
ter qualified  and  more  likely  to  find  the  truth  than  twelve 
strangers  would  be,  upon  information  conveyed  to  them  by 
testimony.  Until  the  introduction  (about  1(550,  Br'ujht  v. 
Eynon,  1  Burrows,  390,  393,  394:)  of  the  practice  of  granting 
new  trials  where  verdicts  were  returned  against  the  evidence, 
they  not  only  might,  but  were  required  to  determine  the  cause 
in  the  absence  of  other  evidence,  upon  their  own  personal 
knowledge.     BmlielVs  Cme,  Vaughan,  148, 149;  3  Bl.  Comm. 

374.  But  if  they  should  give  their  verdict  upon  their  own 
private  knowledge,  it  could  never  be  known  whether  the  ver- 
dict was  according  to  or  against  the  evidence.  "  And  there- 
fore, together  with  new  trials,  the  practice  seems  to  have  been 
first  introduced,  which  now  universally  obtains,  that  if  a  juror 
knows  anything  of  the  matter  in  issue  he  may  be  sworn  as  a 
witness  and  give  his  evidence  publicly  in  court."    3  Bl.  Comm. 

375.  To  thise.Ktent  only  has  the  ancient  doctrine  been  modi- 
fied. 1  Starkie  Ev.  405,"  449;  1  Phil.  Ev.  7;  Rose.  Cr.  Ev.  129; 
192;  1  Archb.  Cr.  Prac.  &  PI.  150;  1  Chit.  Cr.  Law,  007,  608;  2 
Hale  P.  C.  306;  Bac.  Abr.  "  Evidence,"  A,  2;  7  Mod.  2;  1  Salk. 
405;  6  How,  State  Tr.  1012,  note;  Readinf/a  G<ise,  7  How.  State 
Tr.  259,  207:  Kir  mm' s  Case,  31  How.  State  Tr.  543,  807;  Rex 
V.  Rosser,  7  Car.  &  P.  04S;  Parks  v.  Boston,  15  Pick.  198,  209- 
211,  Patterson  v.  Boston,  20  Pick.  159,  100;  Murdoch  v.  Sum. 
ner,  22  Pick.  156,  157;  Schmidt  v.  Insvrance  Co.,  1  Gray,  529, 
535,  536:  McKainv.  Love,  2  Hill  (S.C.),506;  Beil  v.  State,  44 


;)^i 


362 


AMERICAN  CRIMINAL  REPORTS. 


'I 


Ala.  393.  In  Dunljarv.  Parks  (1802),  2  Tyler,  217,  after  the 
evidence  was  closed,  and  before  argument,  a  juror  stated  to  the 
court  that  he  knew  some  matters  relating  to  the  cause,  and 
inquired  whether  it  would  be  proper  for  him  to  communicate 
his  knowledge  to  his  brethren  of  the  panel  after  they  were 
charged;  and  thereupon,  by  direction  of  the  court,  he  was 
sworn,  and  standing  in  the  jury  box  testified  to  a  material 
fact.  "It  is  a  common  occurrence,  both  in  civil  and  criminal 
causes,  to  see  jurors  on  the  panel  called  as  witnesses  to  jirove 
some  material  f.acts  in  their  knowledge  relating  to  the  matter 
in  question."  State  v.  Spencer  (184(5),  21  N.  J.  Law,  19(5, 1'JS, 
199. 

On  the  question  of  a  juror's  competency,  no  sound  distinc- 
tion can  be  drawn  between  his  knowledge  of  one  fact  and  his 
knowledge  of  all  facts  material  to  the  issue.  It  can  not  be 
foretold  that  the  one  fact  which  he  happens  to  know,  however 
remote  and  unimportant  it  may  seem  to  be,  may  not  be  the 
fact  upon  the  existence  or  non-existence  of  which  the  venlict 
will  turn.  Metcalf  v.  GUmore,  63  N.  II.  174,  187,  188.  His 
qualification  to  act  as  a  juror  is  not  affected  by  his  making 
oath  to  the  fact  in  open  court. 

The  common  law  esteems  jurors  indifferent  who  have  no 
motive  to  find  for  or  against  either  party.  All  the  valid 
objections  to  their  competency,  propter  affectum,  whether  for 
principal  cause  or  for  favor,  rest  on  a  motive  presumed  by 
law,  or  proved  as  a  fact,  to  find  for  one  or  the  other  party. 
"The  law  presumeth  that  one  kinsman  doth  favour  another 
before  a  stranger."  Co.  Litt.  157a.  It  presumes  that  the 
servant  will  be  moved  to  favor  his  master,  under  whose  com- 
mand he  is  (21  Edw.  IV.,  p.  67,  pi.  52;  Brooke,  Abr.  "Chal- 
lenge," 183),  and  a  tenant  his  landlord,  who  may  distrain  upon 
him.  One  of  the  reasons  for  requiring  a  juror  to  have  an 
estate  of  freehold  was  the  motive — the  incentive — it  afforded 
to  find  the  issue  truly.  If,  upon  attaint,  his  verdict  was  found 
to  be  false,  among  other  penalties,  his  lands  and  tenements 
might  be  seized  bj  the  king.  Trials  per  Pais  (8th  Ed.),  270, 
271;  Co.  Litt.  294rb.  Hence  a  juror  who,  after  he  was  sum- 
moned and  before  he  was  sworn,  parted  with  his  freehold,  was 
disqualified,  "for  his  feare  to  offend  and  to  have  lands  wasted, 
etc.,  which  is  one  of  the  reasons  of  law,  is  taken  away."  Co. 
Litt.  157a. 


¥m.  % 


STATE  V.  SAWTELLE. 


363 


In  a  suit  for  conspiracy,  the  defendants'  challenge  of  the 
jurors,  for  that  in  an  indictment  for  the  same  conspiracy  they 
had  found  the  defendants  guilty,  was  disallowed,  because  this 
«  did  not  show  that  there  was  ill  will  between  the  jurors  and 
them,  for  the  jurors  acted  upon  their  oath."    27  Ass.  13;  Fitzh. 
Abr.,  "Challenge,"  137;  Brooke,  Abr.,  "Challenge,"  120.    In  an 
action  against  two,  it  was  no  ground  of  principal  challenge  that 
the  juror,  with  others,  had  alread}-^  found  the  other  defendant 
guilty,  and  assessed  damages  for  which  the  challenger,  if  found 
guilty,  would  be  charged.    29  Ass.  3;  Fitzh.  Abr.  "  Challenge," 
145;  Brooke,  Abr., "  Challenge,"  132.  Soif  one  of  the  defendants, 
A,  pleaded  soil  and  freehold,  and  the  other,  B,  pleaded  that 
the  soil  and  freehold  were  in  A,  and  justified  as  his  servant, 
it  was  not  a  principal  challenge  for  B  that  the  same  jurors  at 
a  former  term  tried  the  issue  between  the  plaintiff  and  A,  and 
found  against  A.     18  Edw.  IV.  p.  12,  pi.  8;  Brooke,  Abr., 
"  Challenge,"  175.    An  arbitrator  who  was  jointl}'^  selected  by 
both  parties,  and  f'dly  heard  them  upon  the  matter  put  in 
issue  by  their  pleadings,  could  not  be  challenged  for  principal 
cause  by  either;  but,  if  chosen  by  one  party  to  act  with  one 
chosen  by  the  other,  he  was  challengeable,  because  "  this  el'^c- 
tion  makes  him,  in  a  manner,  a  party  and  counsel  for  him  on 
whose  part  he  is  chosen."    3  Hen.  VI.  p.  24,  pi.  3;  20  Hen. 
VI.  p.  40,  pi.  9;  9  Eclw.  IV.;  p.  46,  pi.  34;  Fitzh.  Abr.,  "  Chal- 
lenge," 37,  57;  Brooke,  Abr.,  « Challenge,"  7,  85;  Co.  Litt. 
157b.    It  was  not  principal  cause  that  a  juror  was  chosen 
by  the  other  party  commissioner  for  the  examination  of  wit- 
nesses in  the  same  case,  for  he  is  made  commissioner  by  the 
king,  under  the  great  seal,  and  is  "  presumed  in  law  to  be 
indifferent"  (9  Coke,  71a;  Co.  Litt.  157b);  nor  that  on  the 
preceding  day  the  juror  had  found  for  the  plaintitt'  upon 
another  issue  in  the  same  cause,  "  for  a  man  shall  not  be  chal- 
lenged for  that  he  said  the  truth"  (9  Edw.  IV.  p.  16,  pi.  15; 
Fitzh.  Abr.,  «  Cliallenge,"  55;  Brooke,  Abr.,  "Challenge,"  S3). 
But  it  is  a  principal  challenge  "if  the  juror  hath  given  a  ver- 
dict for  the  same  cause,  albeit  it  be  reversed  by  writ  of  error, 
or  if,  after  verdict,  judgment  were  arrested.     So  if  he  hath 
given  a  former  verdict  upon  the  same  title  or  matter,  though 
betweene  other  persons."    Co.  Litt.    157b,   and  authorities 
cited.     This  was  not  because  he  had  formed  and  expressed  an 
opinion  upon  the  merits.    If  the  second  trial  of  the  issue  was 


!■■ 


361 


AMERICAN  CRIMINAL  REPORTS. 


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upon  the  saiuo  eviilance  he  vvoukl  have  a  strong  motive  to 
litul  as  he  did  before.  One  of  two  opposite  verdicts  on  the 
same  issue  and  eviilence  must  be  wrong,  and  it  might  as  well 
ba,  and  was  ])erh!\ps  as  likely  to  be,  the  last  as  the  first.  For 
a  verdict  found  false  upon  attaint  he  was  liable  to  heavy  \wn- 
alties.  Trials  per  Pais  (8th  Ed.),  270,  271;  3  131.  Comm.  4(i2- 
405.  A  suificient  and  jierhaps  better  reason  was,  that  he  had, 
under  the  so'emn  sanction  of  his  oath,  otticially  heard  the  evi- 
dence and  determined  the  issue.  The  law  presumed  that  he 
would  not  by  his  second  verdict  confess  that  in  the  former  he 
was  forsworn,  as,  in  attaint,  it  was  presumed  that  the  son  of 
one  of  the  petit  twelve  who  was  dc  ul,  would  not  "  say  contrary 
to  the  oath  of  his  father."  34  Ass.  0;  Fitzh.  Abr.,  "Chal- 
lenge," 127;  Brooke,  Abr.,  "Challenge,"  140. 

At  common  law,  as  well  as  by  the  statute  25  Edw.  III.,  it 
was  a  good  challenge  that  the  juror,  with  others,  found  an 
indictment  against  a  party  for  "  treason,  felony,  misprision, 
trespasse,  or  the  like,  in  the  same  cause."  Co.  Litt.  157b; 
Colledges  Case,  8  How.  State  Tr.  550,  588;  2  Reeve,  Eng. 
Law, 459,  400.  The  law  presumed  that  "all  who  indicted  him 
still  bore  the  same  ill  will  against  him."  Id.  208;  Mirror, 
Just.,  Ch.  3,  §  34.  Actions  pending  between  the  i)arty  and  a 
juror,  of  such  a  nature  as  to  imply  malice  or  ill  will,  as  tres- 
pass for  assault  and  battery,  were  causes  of  princii)al  chal- 
lenge. Other  actions  not  implying  malice,  as  debt,  went  only 
to  the  favor  (Co.  Litt.  157b,  and  cast,  iited;  21  Vin.  Abr.  209, 
270);  for, "  if  a  man  demands  his  debt  of  his  debtor,  it  can  not 
be  intended  that  he  has  ill  will  against  him."  11  Hen.  lY.  p. 
26,  pi.  50;  Fitzh.  Abr.,  "  Challenge,"  87.  That  a  juror  was  a 
tenant  of  a  party,  and  "  within  his  distress  "  [i.  e.  liable  to  be 
distrained  for  rent  or  other  dues),  was  a  j)rincipal  challenge; 
but  if  not  liable  to  distraint,  as  if  he  held  upon  a  rent-seek,  or 
if  the  party  was  within  the  distress  of  the  juror,  the  challcMige 
was  to  the  favor.  Co.  Litt.  157a,  and  cases  cited;  21  Vin. 
Abr.  257-260;  Trials  per  Pais  (8th  Ed.),  187. 

In  Regicides'  Case  (A.D.  1660),  5  How.  State  Tr.  975,  it  was 
resolved  by  all  the  judges  "that  if  several  persons  be  indicted 
together  in  one  indictment  for  one  crime,  in  case  some  of  them 
be  found  guilty  by  one  jur\',  and  afterward  some  of  the  same 
jury  be  returned  for  trial  of  others  in  the  same  indictment,  it 
is  no  challenge  for  those  prisoners  to  say  that  those  jurors  have 


STATE  V.  SAWTELLE. 


865 


already  givon  their  verdict,  and  lound  others  guilty  who  are 
indicted  in  the  same  indictment  for  the  same  offense;  for 
*  *  *  in  law  it  is  a  several  indictnient  against  every  one  of 
them,  and  the  crime  is  several,  and  one  maybe  guilty  and  not 
another;  and  the  jury  are  to  give  their  verdict  upon  particular 
evidence  against  every  several  person,  and  therefore  the  find- 
ing of  one  guilty  is  no  argument  or  presumption  that  those 
jurors  will  find  another  guilty."  This  doctrine  was  not  new. 
The  resolution  was  in  conformity  with  established  principles 
of  the  common  law.  It  went  upon  the  ground  that  a  juror 
who  had  no  malice  or  ill  will  against  the  prisoner  or  other 
motive  to  find  against  him  was  indifferent,  and  was  not  the 
less  indifferent  by  reason  of  the  knowledge  of  the  facts  in  con- 
troversy which  he  obtained  from  the  evidence  produced  at  the 
other  trial.  The  doctrine  has  never  been  questionijd  by  the 
English  courts.  Plunkefs  Case  (A.  D.  1681),  8  How.  State  Tr. 
44rT,  45'^,  451;  Cranhurne's  Case  (1696),  13  How.  State  Tr.  235; 
CooTSs  dase,ld.  311,  313;  Willis''  Case  (1710),  15  How.  State 
Tr.  521,  614,  615;  ThistlewoocT s  Case  (1820),  33  How.  State 
Tr.  681,  956;  Bmnt's  Case, Id.  1177,  1180;  Com.v.  Hill  (1862), 
4  Allen,  591.  If  by  reason  of  the  prisoner's  waiver  of  his 
peremptory  challenges,  or  for  other  cruse  there  was  no  diffl- 
culty  in  obtaining  a  jury,  the  court  often — perhaps  generally 
—directed  that  the  jurors  of  the  previous  trial  be  not  called. 
Regicidei  Case,  5  How.  State  Tr.  975,  1058,  1059;  White- 
hreafVs  Case,  7  How.  State  Tr.  311,  319;  StapletorCs  Case,  8 
How.  State  Tr.  502;  Willis'  Case,  15  How.  State  Tr.  521,  614, 
615;  Turner's  Case,  32  How.  State  Tr.  957-964.  Under  like 
circumstances,  in  other  cases,  jurors  against  whom  no  lawful 
objection  existed  were  sometimes  set  aside  at  the  request  of 
the  prisoner.  At  the  trial  of  Count  Vratz,  in  1682,  as  acces- 
sory before  the  fact  to  the  murder  of  Thomas  Thynn,  by  a 
jury  de  medietate  lingiKS,  the  prisoner's  interpreter  said  to  the 
court:  "  My  lord,  he  desires  that  there  be  none  of  the  jury 
that  are  anything  kindred  or  relation  to  Mr.  Thomas  Thynn, 
nor  any  particular  friend  of  his,  and  he  is  satisfied.  Pember- 
ton,  C.  J.:  No,  there  shall  not.  "We  will  take  care  of  that." 
The  defendant  requested  that  he  might  "  have  the  names  of 
those  that  are  returned  of  the  jury,  and  a  little  time  to  con- 
sider of  it.  Pemberton,  C.  J.:  That  we  can  not  do.  All  we 
can  do  for  you  is,  we  will  take  as  much  care  as  we  can  that 


:,5  Hw 


m^  I 


mil-.]  1 

^^^1 

3G6 


AMERICAN  CRIMINAL  REPORTS. 


you  may  have  indifferent  persons  and  persons  of  quality. 

*  *  The  Interpreter:  He  says,  my  lord,  he  does  not  know 
who  they  are,  but  they  may  be  persons  who  are  touched,  and 
may  have  something  of  evil  will  or  spleen  against  him.  Ills 
father  served  against  the  king  of  Denmark,  and  against  the 
Poles  and  the  Papists,  and  his  father  was  a  Protestant  and 
served  the  Protestant  cause.  *  »  *  Pemberton,  C.  J.: 
Examine  them  as  they  come  to  the  book,  if  there  be  any  of 
Roman  Catholic  religion,  and  do  not  let  any  such  be  sworn." 
9  How.  State  Tr.  1,  8,  11;  Hampden's  Case,  Id.  1053,  1057- 
1061;  CarUle's  Case,  1  State  Tr.  (N.  S.)  1034. 

A  juror's  expression  of  opinion,  however  strong,  upon  the 
merits,  statements  indicating  malice  or  ill  will,  even  his  asser- 
tion that  he  would  find  for  one  of  the  parties,  were  grounds 
for  challenge  to  the  favor  only.  When  shown  in  evidence 
they  were  not  conclusive.  They  were  not,  in  law,  necessarily 
inconsistent  with  indifference.  They  were  subject  to  rebuttal, 
qualification  or  explanation.  In  a  writ  of  estrepement,  tiie 
plaintiff  challenged  a  juror  for  that  "  he  was  favorable  to  tlic 
defendant,  and  had  promised  him  that  he  would  pass  forh'm," 
wherefore  he  was  tried  by  the  triors,  who  found  him  favorable 
to  the  defendant,  and  he  was  withdrawn.  3  Hen.  VI.  (1425), 
p.  38,  pi.  3. 

In  an  action  o^  replevin,  a  juror  was  challenged  "for  that 
he  was  favorable."  Babington,  C.  J.,  submitting  the  question 
to  the  triors,  charged  them  as  follows :  "  Do  you  know,  triors, 
what  is  meant  by '  favorable  ? '  He  is  favorable  who,  whether 
the  matter  is  true  or  false,  will  pass  for  one  or  the  other. 

*  *  *  But,  if  one  has  said  twenty  times  that  he  will  pass 
for  the  one  or  the  other  party,  you  will  inquire  upon  your 
oath  where  the  cause  is  for  the  affection  he  has  for  the  party, 
or  for  the  knowledge  he  has  of  the  matter  in  issue;  and,  if  it  is 
for  the  affection  he  has  for  the  party,  then  he  is  favorable, 
but  otherwise  he  is  not.  And  if  ho  has  more  affection  for  one 
party  than  for  the  other,  yet  if  he  has  full  kn<jwle(lge  of  the 
matter  in  issue,  and  if  he  is  sworn,  will  declare  the  truth  not- 
withstanding the  affection  he  has  for  the  jiarty,  he  is  not 
favorable."  7  Hen.  VI.  (1429),  p.  25,  pi.  8;  Fitzh.  Abr.,  "  Chal- 
lenges," 22;  Brooke,  Abr.,  "  Challenge,"  55;  2  ftolle,  Abr.  655 
Neither  Fitzherbert  nor  Brooke  intimates  a  doubt  of  the  law 
laid  down  by  Babington,  although  they  freely  criticise  and 


STATE  V.  SAWTELLE. 


867 


question  many  of  the  cases  they  abridged,  as,  for  example, 
Fitzh.  Abr,  "Challenge,"  21,  23,  33,  131,  and  Brooke,  Abr., 
"Challenge,"  33,  56,  16S,  181.  The  case  is  twice  cited  by 
Coke  as  one  of  the  numerous  instances  of  challenge  to  the 
favor.  Co.  Litt.  156a  (n),  157b  (b).  With  his  eye  upon  it,  he 
enumerates  among  the  principal  causes  the  giving  of  a  "ver- 
dict before  the  same  cause"  (157b),  but  does  not  mention  the 
expression  of  an  opinion  upon  the  merits,  or  the  declaration 
of  a  purpose  to  find  for  or  against  a  party.  He  evidently 
understood  that  challenges  on  the  latter  ground  went  only  to 
the  favor,  and  that  the  doctrine  of  7  Hen.  VI.,  p.  25,  was  one 
of  the  rudiments  of  the  law,  on  which  there  could  be  no  differ- 
ence of  opinion.  When  this  case  had  been  accepted  by  Eng- 
lish courts  for  400  years  {l?i'x  v.  Edmonds^  4  Barn.  &  Aid.  471, 
490-943)  as  a  correct  application  of  a  familiar  principle,  an 
American  court  fell  into  the  mistake  of  supposing  it  was  not 
cited  by  Coke;  that  his  omission  of  it  was  due  to  its  not  being 
considered  authority;  that  it  was  irreconcilable  with  his  doc- 
trine; and  that  in  liex  v.  Edmonds,  Abbott,  Bayley,  Holroyd 
and  Best  erred  in  their  understanding  of  the  ancient  authorities. 
People  V.  Vermilijea,  7  Cow.  108,  124, 125,  128. 

In  trespass  quare  clausum  the  defendant  justified  his  entry 
by  the  command  of  two  who  were  seized  of  the  land  jointly 
with  a  juror,  who  for  this  cause  was  challenged  by  the  plaint- 
itf;  but  because  the  freehold  could  not  be  recovered  in  trespass 
and  the  juror  could  neither  gain  nor  lose  by  the  verdict,  the 
court  held  that  the  objection  went  to  the  favor  only,  and  sub- 
mitted the  question  to  the  triors,  who  found  the  juror  "egal," 
and  not  favorable.  7  Hen.  VI.  p.  44,  pi.  23;  Fitzh.  Abr., 
"Challenge,"  24;  Brooke,  Abr.,  "Challenge,"  57.  In  attaint, 
the  defendant  challenged  the  array  for  that  the  sheriff  and  one 
K.  had  been  arbitrators,  chosen  on  the  part  of  the  plaintiff,  of 
the  matter,  with  two  others  selected  by  the  defendant.  The 
question  whether  this  was  a  principal  challenge  to  the  sheriff, 
as  it  was  to  a  juror  was  debated,  and  the  decision  postponed, 
that  the  "justices  might  be  advised."  But  Newton,  J.,  said 
that,  "  though  the  sheriff  owed  all  the  ill  and  malice  that  he 
could  to  the  plaintiff  or  the  defendant,  yet  if,  in  making  the 
array,  he  truly  made  it,  without  showing  any  favor  to  one  or 
the  other,  the  array  is  good,  and,  if  he  puts  upon  it  a  juror  *  sus- 
pective  et  nient  indifferent,'  the  whole  array  is  quashed.    And, 


r*- 


3C8 


AMERICAN  CRIMINAL  REPORTS. 


if  a  juror  say  that  he  will  pass  for  the  plaintiff,  his  saying  is  no 
cause  for  withdrawing  him,  unless  it  is  found  by  the  triors  or 
by  the  court  that  he  said  this  more  for  favor  than  for  the  truth 
of  the  matter.  Ad  quod  tota  curia  concordaV  20  Hen.  VI. 
(1442)  pp.  39,  40,  pi.  9;  Fitzh.  Abr.,  "  Challenge,"  37.  Here,  so 
far  as  observed,  the  term  "indifferent"  was  for  the  first  time 
applied  to  a  juror;  and  it  appears  clearly,  by  the  judgment  of 
the  whole  court,  that  a  juror  might  be  found  indifferent  al- 
though  he  had  formed  and  expressed  an  opinion  upon  tiie 
merits. 

"  A  panel  was  returned  in  the  common  bench.  The  defend- 
ant challenged  the  array  for  that  it  was  favorably  made  for 
the  party  plaintiff,  and  prayed  that  it  might  be  examined. 
Then  it  was  examined  b\'  two  triors  of  the  same  inquest,  who 
were  named  by  the  judges,  namely,  the  third  and  the  ninth  in 
the  panel.  *  *  *  It  was  said  by  Frowyk  (chief  justice), 
that  no  sufficient  freehold  is  a  good  challenge,  and  of  this  the 
party  himself  shall  be  sworn  whe';her  it  is  sufficient  or  not. 
Also,  he  said  that  it  is  a  good  challenge  that  he  has  nothing  in 
the  hundred,  if  the  damages  extend  to  forty  marks,  or  that  lie 
is  more  favorable  to  the  party  plaintiff  than  to  the  party  de- 
fendant, for  that  he  hath  said  that  if  he  should  be  impaneled 
he  would  pass  for  the  party  plaintiff."  21  Hen.  VII.  (1506)  p. 
29,  pi.  10.  Frowyk  did  not  understand  that  he  was  overruling 
(7  Cow.  108,  125)  the  doctrine  laid  down  by  Babington  in  7 
Hen.  VI.,  and  by  the  whole  court  in  20  Hen.  VI.;  nor  did  the 
editor  of  the  edition  of  the  Year  Book  printed  in  1079  (or  pos- 
sibly the  original  reporter),  who  cites  the  case  7  Hen.  VI.  in 
the  margin.  The  language  bears  no  such  construction.  It  is 
merely  an  instance  not  uncommon,  of  mentioning  a  ground  of 
challenge  without  stating  whether  it  is  for  principal  cause,  or 
to  favor.  Fitzherbert  was  at  that  time,  doubtless,  engaged  in 
compiling  his  abridgment,  which  was  printed  in  1514 — only 
eight  years  later.  It  is  possible,  perhaps  probable,  that  he  was 
present  in  court,  and  heard  YrowyV^s  dictum.  It  is  not  referred 
to  in  his  abridgment.  He  seldom  mentions  mere  dicta,  but  he 
would  not  be  likely  to  omit  it  if  he  supposed  it  overruled,  or 
cast  a  doubt  upon,  previous  decisions.  Brooke,  who  died  in 
1558,  and  whose  work  was  published  in  1568,  in  his  abstract  of 
the  case,  gives  it  as  a  dictum  as  follows :  "  By  Frowyk,  Jus- 
tice :    Kot  sufficient  freehold  is  good  challenge,  and  of  this  the 


STATE  V.  SAWTELLE. 


809 


party  himself  shall  be  sworn  if  it  is  sufficient  or  not;  and  it  is 
a  good  challenge  that  he  has  nothing  in  the  hundred,  where 
the  damages  are  forty  marks,  or  to  say  that  he  has  reported 
that  if  he  should  be  impaneled  he  would  pass  for  the  plaintiff, 
tame7i  qucere  of  the  hundred  *  *  *  for  he  ought  to  have 
in  the  hundred,  or  dwell  there,  in  every  cause  of  action:  but, 
where  the  debt  or  damages  are  forty  marks,  he  must  have  forty 
shillings  of  freehold,  j-w^^tZ  vide  in  the  statutes."  Brooke,  Abr., 
"  Challenge,"  90.  It  is  incredible  that  Brooke  should  thus 
criticise  Frowyk's  dictumtonch'ing  the  hundred,  and  pass  with- 
out remark  the  discrepancy,  if,  in  his  judgment,  there  were 
any,  between  the  other  dictum  and  the  law  laid  down  by  Bab- 
ington,  which  he  (**  Challenge,"  55)  had  already  stated. 

In  attaint  "  a  juror  was  challenged  for  that  he  was  especially 
laboured  (by  the  other  party)  since  he  was  sworn  at  the  last 
term,  and  the  triors  found  him  indifferent,  and  he  was  sworn. 
And  another  was  challenged  for  that  he  said  that  if  he  was 
sworn  he  would  pass  for  the  plaintiff,  and  he  «vas  withdrawn. 

Another  was  challenged  for  that  he  was  the  plaintiff's  serv- 
ant, and  it  was  so  found.  And  the  array  of  the  tales  was 
challenged  for  that  the  defendant  offered,  if  the  sheriff  made 
the  panel  at  his  nomination,  he  should  have  ten  marks.  And 
the  jurors  who  had  been  sworn  found  the  tales  not  indiffer- 
ently made — ^nient  indifferent  faiV  "  21  Hen.  VII.  (A.  D. 
1506),  p.  32,  pi.  21.  Here  it  is  not  expressly  stated  whether 
the  challenge  for  the  juror's  statement  was  tried,  and  the  juror 
found  not  indifferent,  or  whether  the  plaintiff  submitted  to  the 
objection  without  a  trial.  It  not  unfrequently  happened  in 
those  days,  as  in  later  times,  that  the  evidence  was  so  clear 
and  incapable  of  rebuttal  that  the  challenge  was  yielded  to 
without  demanding  a  trial.  7  He'  .  VI.,  p.  40,  pi.  7;  27  Hen. 
VIII.,  p.  26,  pi.  4;  2  Eolle,  Abr.  6 '0,  pi.  6.  "A  juror  was 
challenged  for  malice  that  he  had  to  the  plaintiff,  and  found 
indifferent;  and,  when  he  came  to  the  book  to  be  sworn,  he 
said  that,  notwithstanding  the  plaintiff  had  been  a  false  harlot 
to  him,  yet  he  would  find  according  to  the  truth.  Deinshil 
showed  this  to  the  court,  and  prayed  that  he  be  tried  by  the 
triors,  for  his  malice  appeared  by  his  words.  Fitzherbert,  J. : 
He  has  been  once  found  indifferent,  wherefore  he  shall  not  be 
tried  again — to  which  the  court  agreed."  27  Hen.  VIII. 
(1536),  p.  21,  pi.  10;  Brooke,  Abr.,  "  Challenge,"  4.  A  chal- 
24 


J    ■"', 


1 1' 


^  f-^ 


yi* , 


TlfMpiikWf*?, 


870 


AMERICAN  CRIMINAL  REPORTS. 


lenge  to  a  juror,  for  that  he  said  to  one  of  the  parties,  "  Pro- 
vide  you  to  pay,  for  if  I  am  sworn  I  will  give  my  verdict 
against  you,"  was  considered  a  challenge  to  the  favor,  and  sub- 
mitted to  triors,  who  found  the  juror  not  indifferent^  and  ho 
was  withdrawn,  in  Od'iU  v.  Tyrrell  (1010),  1  Bulst.  20. 

In  Cook's  Case  (101)0),  13  How.  State  Tr.  311,  333,  334,  Cook 
said:  "My  lord,  before  the  jury  is  called,  I  am  advised  that 
if  any  of  tlie  jury  have  said  already  that  I  am  guilty,  or  they 
will  And  me  guiltj',  or  I  shall  suffer,  or  be  hanged,  or  the  like, 
they  are  not  fit  or  proper  men  to  be  of  the  jury."  h.  C.  J. 
Tre by  replied:  "You  say  right,  sir.  It  is  a  good  cause  of 
challenge" — meaning  a  good  cause  of  challenge  to  the  favor, 
to  be  tried  by  triors,  or,  if  the  parties  assented,  by  the  court. 
He  meant,  and  was  understood  to  mean,  not  that  by  tiio 
mere  utterance  of  those  words,  or  any  of  them,  a  juror  was, 
by  intendment  of  law,  disqualified,  but  that  the  expressions 
disclosed  such  a  probability  of  bias  that  they  ought  to  be  sub- 
mitted to  and  considered  by  triors  on  the  question  of  indilFor- 
ence.  It  was  the  right  of  the  crown  to  demand  triors,  and  the 
submission  to  them  of  the  question,  not  merely  whether  the 
juror  had  used  those  words,  but  whether,  on  the  whole  evi- 
dence presented,  ho  stood  indifferent.  Triors  were  not  de- 
manded because  there  was  no  occasion  for  them.  The  court 
found  (correctly  or  incorrectly),  not  as  matter  of  law,  but  as 
matter  of  fact,  that  certain  expressions,  if  made  by  the  juror, 
would  be  scandalous  misbehavior — a  disgrace  and  dishonor  to 
him,  as  an  avowal  of  a  mortal  hatred  to  the  accused,  and  a 
malicious  resolution  to  convict  him  without  regard  to  the  evi- 
dence. 

Upon  this  correct  or  incorrect  conclusion  of  fact  the  court 
ruled,  in  accordance  with  long  established  law  (49  Edw.  III. 
p.  1,  49  Ass.  1;  Fitzh.  Abr.,  "Challenge,"  100;  Brooke,  Abr., 
"  Challenge,"  25),  that  jurors  could  not  be  required  to  confess 
their  own  infamy;  and  the  defendant,  having  no  other  evi- 
dence, was  forced  to  challenge  peremptorily  those  whom  lie 
suspected.  That  the  court  understood  the  words  were  used 
without  qualification,  and  as  equivalent  to  a  declaration  by 
•the  juror  that,  regardless  of  the  evidence,  he  would  find  the 
defendant  guilty,  is  apparent  from  the  discussion  of  the  ques- 
tion whether  he  could  be   asked  and  required   to  answer 


whether  he  had  uttered  the  words  as  charged. 


Sergeant  Dar- 


STATE  V.  SAWTELLE. 


871 


nail  for  the  defemltint:     "I  think  any  man,  my  lord,  that 
comes  to  sorve  upon  tho  jurj',  may  be  asked  any  quostion  that 
does  not  make  him  guilty  of  any  offense  or  crime,  or  liable  to 
any  punishment.    Now,  if  any  of  those  gentlemen  that  are 
returned  upon  this  panncl,  before  the  summons  have  declared 
their  opinion  that  the  prisoner  is  guilty,  or  ought   to  suffer; 
with  submission  the  prisoner  may  ask  such  a  quostion,  whether 
he  have  said  so,  yea  or  no.    *    *    *     L.  0.  J.  Treby:    You 
put  it  too  large,   Brother  Darnall.     You  may  ask,  upon  a 
voir  dlfe,  whether  he  have  any  int<  i.jst  in  the  cause.     Nor 
shall  wo  deny  you  liberty  to  ask  whether  ho  be  fitly  quali- 
hed,  according  to  law,  by  having  a  freehold  of  sufficient  vali'.e. 
But,  that  you  can  ask  a  juror  or  a  witness  every  question  that 
will  not  make  him  criminous,  that  is  too  large.    Men  have 
been  asked  whether  they  have  been  convicted  and  j  ardoned 
for  felony,  or  whether  they  have  been  whipped  for  petty 
larceny,  but  thej'^  have  not    been  obliged   to  answer;    for, 
though  their  answer  in  the  affirmative  will  not  make  them 
criminal,  or  subject  them  to  punishment,  yet  they  are  matters 
of  infamy,  and,  if  it  be  an  infamous  thing,  that  is  enough  to 
preserve  a  man  from  being  bound  to  answer.    ♦    ♦    «    A. 
juror  may  be  challenged,  being  an  alien  or  being  a  villain; 
but,  where  the  matter  apparently  carries  crime  or  shame,  it 
should  be  proved.     The  outlawry  should  be  proved,  and  so 
should  the  being  a  villain.     Yet  that  is  no  crime,  though  it  be 
an  ignominy.    Darnall :    But  my  lord,  I  take  this  to  be  no 
manner  of  infamy  at  all.    There  is  nothing  of  crime,  nor 
nothing  of  reproach,  but  only  a  declaring  of  a  man's  opinion: 
L  C.  J  Treby :    Truly,  I  think  otherwise.    I  take  it  to  be 
at  least  a  scandalous  misbehavior,  and  deservedly  illspoken  of, 
for  any  man  to  prejudge,  es|Tecially  in  such  a  heinous  matter. 
I  think  it  a  very  shameful  discovery  of  a  man's  weakness  and 
rashness,  if  not  malice,  to  judge  before  he  hears  the  cause,  and 
before  the  party  that  is  accused  could  be  tried.    But  it  seems, 
by  what  the  prisoner  says,  that  he  would  ask  all  the  jurors 
whether  they  have  not  said  that  he  was  guilty,  or  that  they 
would  find  him  guilty,  or  that  he  should  be  hanged,  or  the 
like,  which  (presuming  hira  innocent)  is  to  ask  whether  they 
have  not  defamed  and  slandered  him  in  the  highest  degree, 
and  to  force  them  to  discover  that  they  have  a  mortal  hatred 
to  him,  and  come  with  a  malicious  resolution  to  convict  him, 


MJ 


it 


.  t* 


372 


AMERICAN  CRIMINAL  REPORTS. 


which  admitting  they  are  not  punishable  by  our  law,  yet  aro 
things  so  detestably  wicked  and  so  scandalous  as  are  not  tit  to 
be  disclosed  by  and  against  themselves. 

Darnall :  Pray,  my  lord,  what  is  more  common  than  for 
a  man  to  say  before  he  is  summoned  to  be  upon  a  jury,  when 
he  hears  a  fact  reported  concerning  such  a  one,  to  say, '  1 
believe  he  is  guilty',  or  '  I  am  of  opinion  he  is,  and  I  am' sure 
he  will  be  hanged '  ?  and  yet  there  is  no  crime  in  this.  L.  C. 
J.  Treby :  Truly,  Brother  Darnall,  1  know  not  how  you  may 
approve  of  such  a  man,  but  I'll  assure  you  I  do  not.  I  take 
the  question  not  to  be  concerning  a  man's  discoursing  supposi- 
tively;  as  if  upon  hearing  news,  or  a  report  of  clear  evidence, 
a  man  should  say,  *  Supposing  this  to  be  true,  such  a  man  is 
guilty,  and  I  should  find  him  so  if  I  were  of  his  jury.'  This 
might  not  be  sufficient  to  set  aside  a  juioi.  For  this  has  been 
a  general  discourse  among  the  subjects  upon  occasion  of  this 
conspiracy,  and  it  imports  that  if  evidence  should  not  be  true 
and  clear  he  would  acquit  him,  and  so  he  is,  as  he  should  be, 
indifferent.  But  if  a  man  qualified  for  a  juror  affirm  posi- 
tively that  such  a  prisoner  is  guilty,  and  that  he  will  find  him 
so,  whatever  evidence  or  proof  be  given  or  made  to  the  con- 
trary, I  think  that  may  be  a  misdemeanor  punishable  as  an 
owning  and  encouraging  of  falsehood,  perjury,  and  injustice, 
and  a  contempt  and  scandal  to  the  justice  of  the  kingdom. 

*  *  *  Darnall :  Our  objection  is  not  because  it  is  an 
offense  to  declare  a  man's  opinion  upon  a  fact  reported,  but 
because  it  shows  he  has  a  settled  opinion  against  the  person  of 
his  guilt,  and  so  he  is  not  so  equal  a  man  to  try  him.  L.  C.  J. 
Treby :  And  is  that  like  an  honest  man  and  a  freeholder  of 
London  (who  ought  to  be  indilTerent),  to  come  with  a  settled 
opinion  against  a  man,  when  he  is  to  be  one  of  his  jury  ? 

*  *  *  Truly,  1  think  it  reflects  both  dishonesty  and  dis- 
honour upon  him,  and  therefore  these  questions  ought  not  to 
be  asked.  The  question  is  not  whether  a  man  (if  ever  such  a 
man  there  were)  that  hath  so  resolved  and  declared  shall  be 
sworn.  No,  he  is  not  fit  to  serve  upon  a  jury.  But  the  question 
is,  how  this  shall  be  discovered — by  his  own  oath,  or  by  other 
proof  ?  I  think  it  ought  to  be  made  appear  by  other  proof, 
if  true.  *  *  *  But  if  any  man  in  this  pannel  have  any 
particular  displeasure  to  the  prisoner,  or  be  unindifferent,  or 
have  declared  himself  so,  I  do  admonish  and  desire  him  to  dis- 


STATE  V.  SAWTELLE. 


878 


cover  so  much  in  general;  for  it  is  not  fit,  nor  for  the  honour 
of  the  king's  justice,  that  such  a  man 'should  serve  on  the 
jury."    Pages  334-33S.    In  reading  Cook's  case,  it  is  to  be 
borne  in  mind  that  the  only  point  adjudged  was  that  the  jurors 
could  not  be  asked  or  required  to  answer  the  question  whether 
they  had  used  the  words  attributed  to  them.    The  question 
whether  preconceived  opinion  would  disqualify  a  juror,  in  the 
absence  of  motive  to  find  for  or  against  either  party,  was  not 
raised  or  considered.    What  Darnall  called  a  "  settled  opin- 
ion" against  the  defendant — styled  b}'  Parker,  C.  J.,  a  "  fixed 
belief,"  "  fixed  determination,"  "  fixed  opinion"  {State  v.  How- 
ard, 17  N.  H.  189, 190-192, 195),  the  court  considered  as  equiv- 
alent to — synonymous  with — "  a  malicious  resolution  to  con- 
vict him."    The  case  lends  no  color  of  authority  for  the  prop- 
osition to  which  it  is  sometimes  cited — that  at  common  law 
a  previously  formed  and  expressed  opinion  upon  the  merits 
disqualifies  a  juror.     "  Had   the  juror    *    *    *    been  regu- 
larly challenged,  triors  would  have  been  appointed  and  wit- 
nesses would  have  been  called  to  prove  that  he  had  said  the 
prisoner  was  guilty  and  would  be  hunn;.     If  the  testimony 
iiad  stopped  here,  possibly  the  triors  would  have  found  him 
not  indifferent,  or  in  other  words,  pronounced  him  disqualV 
fied  from  serving.     But  had  it  appeared  on  cross-examination, 
or  by  other  witnesses,  that  he  was  totally  unacquainted  with 
the  prisoner,  and  could  have  no  personal  ill  will  toward  him, 
and  that  the  opinion  he  had  expressed  was  founded  solely  on  the 
information  he  had  received  from  a  neighbor,  the  triors  would, 
no  doubt,  have  found  indifferent."     9  Month.  Law  Rep.  201. 
In  Layer's  Case  (1722),   16  How.  State  Tr.   93,   136-138; 
Barbot's  Case  (1753),   18    How.  State   Tr.   1229,   1233;    and 
Toohe's  Case  (1794:),  25  How.  State  Tr.  1,  15 — jurors  were 
challenged  because  they  had  said  that  the  prisoner  ought  to 
be  hanged;  that,  if  on  the  jury,  they  would  hang  him,  or  that 
they  believed  him  guilty;  and  upon  its  being  shown  that  they 
had  so  stated,  they  were  set  aside  without  objection  or  demand 
for  triors,  on  the  part  of  the  crown.     In  CCoigly's  Case 
(1798),  26  How.  State  Tr.  1191,  1218,  1226-1230,  before  any 
juryman  was  o'  .aiued,  Plumer,  for  the  defendants,  challenged 
Thomas  Raikes  "  for  cause,"  and  John  Foulkes  was  sworn. 
"  Mr.  Plumer :    Did  you  see  Mr.  Raikes  at  the  time  of  the 
arraignment  of  the  prisoners  ?    Yes.    Did  you  hear  him  say 


iX 


;iTP 


374 


AMERICAN  CRIMINAL  REPORTS. 


anything  respecting  the  prisoners  at  that  time  ?  lie  *  *  * 
inquired  the  names  of  the  prisoners  separately.  *  *  *  He 
looked  them  all  steadfastly  in  the  face,  quite  close  to  them, 
clenched  his  fist,  and  exclaimed, 'Damned  rascals!'  Atty. 
Gen.  (Sir  John  Scott) ;  ♦  »  *  That  is  no  cause  of  chal- 
lenge. Mr.  Plumer :  There  can  be  no  doubt,  if  the  fact  is 
believed,  it  proves  that  Mr.  Raikes  does  not  come  here  with 
that  indifferent  mind  which  every  person  who  sits  upon  the 
life  of  a  person  ought  to  have.  *  *  *  Atty.  Gen. :  We 
are  getting  here  into  prodigious  irregularity,  and  I  feel  it  my 
duty  to  protect  the  gentlemen  of  the  jury  against  this  sort  of 
attack.  If  my  friend  means  to  state  any  case  of  fact  which  he 
has  to  propose  to  the  court,  let  him  state  that  case,  and  let  us 
have  it  tried  by  triors.  Mr.  Dallas  (for  the  defendants) :  It 
is  not  only  expressive  of  malice,  but  it  furnishes  a  presump- 
tion that  the  juror  has  formed  an  opinion  with  respect  to  the 
particular  case. 

Atty.  Gen.:  I  must  interrupt  this  mode  of  proceeding.  Mr. 
Justice  BuUer :  Will  you  have  it  tried  ?  Dallas :  Yes,  we  will 
have  it  tried."  Thereupon  the  court  appointed  two  of  the  by- 
standers (not  of  the  jury)  triors.  The  witness  Foulkes  was 
again  sworn,  and  testified  in  chief  in  substance  as  before.  The 
attorney-general  cross-examined  him  at  length,  and,  in  rebut- 
tal, called  Sir  John  Mitford,  who  testified  that  Mr.  Raikes  had 
expressed  to  him  an  extreme  unwillingness  to  be  upon  the 
jury,  stated  the  extreme  inconvenience  it  would  be  to  him, 
and  that  he  had  applied  to  the  court  to  be  excused,  liuller, 
J.,  said  to  the  triors :  "  Gentlemen^  you  will  say  upon  tlie 
evidence  you  have  heard  whether  you  are  of  opinion  that  Mr. 
Raikes  is  a  person  who  will  try  these  prisoners  indifferently, 
upon  the  evidence  that  may  be  given,  or  not,"  After  con- 
sulting together,  one  of  the  triors  said :  "  As  the  oath  is 
ti^ken  against  Mr.  Raikes,  we  think  he  had  better  be  omitted." 
After  two  jurymen  were  obtained,  the  defendants  challengotl 
J.  Martyr  for  cause.  Buller,  J.,  directed  the  two  already 
sworn  as  jurors  to  be  sworn  as  triors.  Benj.  Rawson  testi- 
fied :  "  I  heard  him  [Martyr]  say  that  he  was  afraid  the 
prisoners  were  guilty;  and  something  more  he  said,  I  do  not 
recollect  what,  but  he  ended  it  by  saying, '  I  ho]>e  they  will 
be  hanged  if  they  are  guilty.'  "  AVhile  the  witness  was  being 
cross-examined,  the  defendants  abandoned  their  challenge. 


STATE  V.  SAWTELLE. 


876 


In  Sheridan's  Case  (1812),  31  How.  State  Tr.  543,  634-637,  a 
juror  was  clmllenged  as  bearing  malice  against  the  defendant, 
and  not  indifferent.  Triors  were  appointed  on  the  demand  of 
the  crown.  The  defendant  offered,  but  was  not  permitted,  to 
prove  by  the  juror  himself  that  he  was  an  Orangeman,  and,  as 
such,  had  "  taken  an  oath  hostile  to  the  Catholics  of  Ireland," 
and,  having  no  other  evidence,  withdrew  the  challenge,  and 
the  juror  was  sworn. 

In  the  case  of  Tutchin  (1704),  tried  for  libel  (14  How.  State 
Tr.  1095,  1100),  E.  P.,  being  called,  said  "  My  lord,  I  desire  I 
may  be  excused.  I  do  not  know  Mr.  Tutchin,  for  I  never  saw 
him  in  my  life;  but  I  have  read  his  observators,  and  have 
several  times  publicly  disallowed  them,  and  therefore  some 
may  think  I  am  prejudiced  against  him.  *  *  *  L.  C.  J. 
Holt  t  You  must  not  be  excused,  unless  the  queen's  counsel 
will.  Mr.  Montague :  We  challenge  him  on  behalf  of  the  de- 
fendant. Atty.  Gen.  (Sir  E.Northy):  Shew  your  cause.  Mr. 
Montague :  My  lord,  our  cause  is,  that  he  himself  looks  upon 
himself  as  not  indifferent.  L.  C.  J.  Holt :  He  says  he  has 
read  some  of  the  papers,  and  has  publicly  condemned  them, 
*  *  *  but  he  does  not  know  the  author.  Mr.  Whitaker 
(for  the  defendant) :  But  he  said  he  did  not  doubt  but  he  was 
the  author  of  them.  Serj.  Darnall  (for  the  crown) :  He  is  the 
fitter  man  for  a  jury.  *  *  *  Mr.  Montague :  My  lord, 
the  matter  we  are  contending  for  is,  that  one  that  is  not  alto- 
gether an  indifferent  person  should  not  be  on  the  jury. 

Attorney-General :  The  question  is  not  whether  the  papers 
are  criminal,  but  whether  the  defendant  is  the  author  of  the 
papers;  and,  if  this  gentleman  knows  him  to  be  the  author  of 
them,  he  is  proper  to  be  on  the  jury.  For  the  jury  are,  by 
law,  to  be  of  the  neighbourhood  of  the  place  where  the  fact  is 
alleged  to  be  done,  because  they  are  presumed  to  know  what 
is  done  there.  And  if  this  be  the  cause  of  challenge  you 
may  challenge  all  people,  and  so  there  could  be  no  trial. 
L.  C.  J.  Ilolt :  He  can  not  be  challenged  unless  he  has  given 
his  verdict  before.  Solicitor-General  (Sir  S.  Harcourt) :  My 
lord,  we  can  have  no  jury  the  way  we  are  going.  A  juryman 
is  not  to  be  asked  what  his  opinion  of  the  cause  is.  *  *  * 
L.  C.  J.  Holt :  It  is  not  a  challenge.  Mr.  Montague :  Surely, 
my  lord,  he  is  not  so  indifferent  as  he  ought  to  be.  IIo 
says  he  has  already  declared  his  opinion  publicly  concerning 


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iii^ 

376 


AMERICAN  CRIMINAL  REPORTS. 


Mr.  Tutchin's  papers.  *  *  *  L.  C.  J.  Holt :  Draw  up  your 
challenge  in  form,  and  it  shall  be  considered.  *  «  *  j  ^yju 
have  it  done,  that  it  may  remain  a  decision  in  perpetuam  rei 
tnenioriam.  But,  if  you  that  are  for  the  defendant  will  waive 
it,  you  may.  *  *  »  Solicitor-General:  Is  it  a  principal, 
or  to  the  favor?  L.  C.  J.  Holt :  A  principal  challenge,  if  any. 
*  *  *  He  makes  it  as  a  principal  challenge.  *  *  *  It 
must  be  a  principal  challenge  or  nothing;  for  there  can  be  no 
challenge  to  favor  in  the  case  of  the  crown."  That  the  juror 
was  finally  excused  by  consent  detracts  little  from  the  weight 
of  the  judgment.  The  jury  were  to  pass,  not  upon  the  ques- 
tion whether  the  papers  were  or  were  not  libelous — that  was 
a  question  of  law — but  on  the  single  question  whether  tlie 
defendant  was  the  author  of  them,  and  Lord  Holt  held  that 
the  juror's  understanding  oi-  opinion  that  he  was  the  author 
Avas  no  objection  to  his  serving.  The  precise  extent  and  lim- 
itations of  the  doctrine  that,  against  the  crown,  a  juror  could 
not  be  challenged  for  favor,  are  not  clear.  Co.  Litt.  Lofia, 
and  Hargrave's  notes,  4,  5;  2  Ilawk.  P.  C,  c.  43,  §  32;  Trials 
per  Pais,  203;  1  Chit.  Cr.  Law,  539;  IlmnpderCs  Case,  9  How. 
State  Tr.  1053,  1057-1061;  Parhjm'  Case,  13  How.  State  Tr. 
75;  BowarCs  Case,  22  How.  State  Tr.  1033,  1037;  Muir's  Case, 
23  How.  State  Tr.  117, 133, 134;  DespartTs  Case,  28  How.  State 
Tr.  346,  356,  357;  Edmonds'  Case,  1  State  Tr,  (N.  S.)  785,  91C; 
S.  C,  6  E.  C.  L.  498,  499.  But  it  is  not  material  whether  the 
holding  that  the  challenge  was  "  a  principal  challenge,  if  any," 
was  correct  or  not,  the  only  ground  of  that  judgment  being 
that  a  challenge  to  the  favor  could  not  be  taken  against  the 
king. 

In  Edmonds'  Case  (1821),  1  State  T-  (N.  S.)  785,  792,  upon 
objection  by  the  crown,  the  court  refused  to  permit  special 
jurymen  to  be  asked  whether  they  had  expressed  any  opinion 
upon  the  case.  The  question  was  put  to  common  jurymen  or 
talesmen  without,  so  far  as  appears,  objection  on  the  part  of 
the  crown. 

In  the  course  of  the  argument  of  a  motion  for  a  new  trial 
(before  Abbott,  C.  J.,  Bayley,  Ilolroyd  and  Best,  J  J.),  Best,  J., 
said  (pages  887, 888) :  "  Partiality  to  the  prosecutor,  or  enmity 
to  the  prisoner,  is  the  ground  upon  which  a  challenge  is 
allowed.  *  *  *  You  will  find  if  a  juror  sa\'s  he  will  give 
a  verdict  in  a  particular  way,  and  that  he  will  do  this  for 


STATE  V.  SAWTELLE. 


877 


« 


affection  for  either  party,  he  is  to  be  challenged. 
The  question  is  whether  what  he  said  was  from  a  knowledge 
he  had,  or  from  favour  to  one  party  more  than  to  the  other. 
If  a  man  merely  expresses  his  horror  at  a  statement  of  facts, 
it  does  not  prove  him  to  be  a  person  disqualified  from  attend- 
ing upon  a  trial."    The  opinion  of  the  whole  court  (after 
taking  time  to  consider)  was  pronounced  by  Abbott,  C.  J., 
who  said,  among  other  things  (pages  921-921) :    "  The  last 
ground  of  the  motion  for  a  new  trial  was  the  refusal  of  what 
has  been  called  a  *  challenge  to  the  polls'  in  the  case  of  the 
special  jurymen.     This  challenge  was  made  on  the  ground  of 
opinions  supposed  to  have  been  expressed  by  those  gentlemen 
hostile  to  the  defendants  and  their  cause.    There  was  no  offer 
to  prove  such  an  expression  by  any  extrinsic  evidence,  but  it 
was  proposed  to  obtain  the  proof  by  questions  put  to  the  jury- 
men themselves.    The  lord  chief  baron  refused  to  allow  such 
questions  to  be  answered;  and,  in  our  opinion,  he  was  right  in 
this  refusal.     It  is  true,  indeed,  that  he  permitted  similar  ques- 
tions to  be  answered  by  the  talesmen;  but  in  so  doing,  we 
think,  he  acted  under  a  mistake.     It  does  not  appear  distinctly 
in  what  precise  form  the  question  was  propounded;  but  in 
order  to  make  the  answer  available  to  any  purpose,  if  it  could 
have  been  received,  it  must  have  been  calculated  to  show  an 
expression  of  hostility  to  the  defendants,  or  some  of  them  —a 
preconceived  opinion  of  their  personal  guilt,  or  a  determination 
to  find  them  guilty.    Anything  short  of  this  would  have  been 
altogether  irrelevant.     The  language  of  Mr.  Sergeant  Haw- 
kins upon  this  subject  (liber  2,  c.  43,  §  2S)  is,  that  if  the  jury- 
man '  hath  declared  his  opinion  beforehand  that  the  party  is 
guilty,  or  will  be  hanged,  or  the  like,  yet  if  it  shall  appear 
that  the  juror  hath  made  such  declaration  from  his  knowledge 
of  the  cause,  and  not  out  of  any  ill  will  to  the  party,  it  is  no 
cause  of  challenge.'    So  that,  in  the  opinion  of  this  learned 
writer,  the  declaration  of  a  juryman  will  not  be  a  good  cause 
of  challenge,  unless  it  be  made  in  terms  or  under  circumstances 
denoting  an  ill  intention  toward  the  party  challenging.    A 
knowledge  of  certain  facts,  and  an  opinion  that  those  facts  con- 
stitute a  crime,  are  certainly  no  grounds  of  challenge,  for  it  is 
clearly  settled  that  a  juryman  can  not  be  challenged  by  reason 
of  his  having  pronounced  a  verdict  of  guilty  against  another 
person  charged  by  the  same  i  adictment."    After  citing  Brooke, 


r 


;!l|. 


378 


AMERICAN  CRIMINAL  REPORTS. 


Abr.,  "Cliallenge,"  55, 90;  Fitzh.  Abr.,  "  Challenge,"  22;  7  Eon. 
VI.  p.  25;  21  Hen.  VII.  p.  29;  and  49  Edw.  III.  p.  1,  he  con- 
tinues :  "  These  ancient  authorities  show  that  expressions  used 
by  a  juryman  are  not  a  cause  of  challenge,  unless  they  are  to 
be  referred  to  something  of  personal  ill  will  toward  the  per- 
son challenging,  and  also  that  the  juryman  himself  is  not  to  be 
sworn  where  the  cause  of  challenge  tends  to  his  dishonour; 
and,  to  be  sure,  it  is  a  very  dishonourable  thing  for  a  man  to 
express  ill  will  toward  a  person  accused  of  crime,  in  regard  to 
the  matter  of  his  accusation.  And  accordingly  we  lind  it 
established  in  later  times,  namely,  at  the  trial  of  Peter  Cook, 
13  IIow.  State  Tr.,  334  *  *  *  that  such  questions  are  not 
to  be  put  to  the  juror  himself.  So  that  all  the  ■  uthority  in  the 
liw  on  this  head  is  .against  tlio  defendants,  an('  shows  that  the 
rafusal  of  the  lord  chief  baron  to  allow  the  ]n'o|)osed  questions 
to  be  answered  by  the  special  jurymen  was  most  ])roper,  and 
agreeable  to  law."  The  opinion  is  also  found  in  liej;  v. 
Edmonds^  4  Barn.  &  Aid.  471. 

Rdmathje  v.  Ryan  (1S32),  9  Bing.  333,  was  an  action  for  libol, 
in  which  the  jury  returned  a  verdict  for  the  plaintiff  for  £4(>0. 
An  action  brought  by  the  plaintiff  against  Wakely  for  sub- 
stantially the  same  lil)el  was  tried  the  day  before,  and  the  jury 
gave  the  plaintiff  Jd.  in  damages.  The  defendant  obtained  a 
rule  n'm  for  a  new  trial,  on  the  ground  that  Ilart,  one  of  the 
jurors,  was  present  during  the  trial  of  the  suit  against  Wakely, 
and  at  its  conclusion  said,  "  I  shall  be  on  the  jury  to-)norrow, 
and  I  will  take  care  that  the  verdict  does  not  go  thct  'v  ".  be 
had  heard  quite  enough,  and  that  his  mind  was  mnAr  ,  t'. 
the  verdict  he  should  give."  Hart  deposed  that  jiS  .  ;?!uis 
were,  "  Well,  I  am  surprised  at  such  small  damages,  aal  I 
been  upon  the  jury  I  certainly  should  have  given  very  heavy 
damages.  I  am  upon  the  jury  to-morrow."  The  rule  was  dis- 
charged for  the  reason  that  it  was  not  established  that  Hart 
said  "  he  would  take  care  the  verdict  should  not  go  the  same 
way."  The  court  held  that  the  words  charged  would,  but 
that  the  admitted  words  would  not,  have  been  a  cause  of  chal- 
lenge. Alderson,  J.,  said  :  "  Though  the  expressions  which 
the  juror  admits  himself  to  have  used  were  imprudent,  yet  his 
entertaining  a  strong  opinion  on  a  former  verdict  is  not  incom- 
patible with  his  giving  a  correct  verdict  on  the  case  which  was 
to  come  before  him.    *    *    *    There  is  nothing  in  the  Ian- 


STATE  V.  SAWTELLE. 


379 


gnage  which  he  admits  which  would  lead  one,  independent  of 
munner,  to  assume  that  he  had  prejudged  the  verdict  he  was 
himself  to  give." 

In  Jieff.  V.  Hughes  (1842),  2  Craw.  &  D.  396,  400  (Joy,  Chal. 
200,  207),  on  a  cliallenge  of  u  juror  upon  the  ground  that  he 
had  formed  and  expressed  an  opinion  on  the  merits,  Crampton, 
J.,  charged  the  triors  as  follows: 

"  The  issue  you  are  sworn  to  try  is  whether  the  juror  called 
stands  indifferent  between  the  crown  and  the  prisoner.  It 
means  this,  whether  he  be  partial  to  one  side  or  the  other; 
whether  any  partiality  exists  in  the  mind  of  the  juror  in  favour 
of  the  crown,  and  against  the  prisoner.  Tou  can  not  enter 
into  the  mind  of  the  juror  to  know  what  his  feelings  may  be, 
but  such  must  be  ascertained  by  evidence.  Here  it  is  proposed 
to  prove  that  the  juror  does  not  stand  indifferent  to  the  pris- 
oner by  proving  a  declaration  made  by  him  at  the  lasi  assizes; 
and,  according  to  the  evidence  of  the  witness,  the  juror  did 
declare  at  the  last  trial  of  the  prisoner  that  he  had  expressed 
an  opinion  of  the  guilt  or  innocence  of  the  prisoner  at  the  bar, 
or  some  of  those  charged  with  this  crime.  A  mere  ex))ression 
of  opinion  as  to  the  guilt  or  innocence  of  a  person  charged  with 
a  crime,  arising  out  of  any  cause  save  malice  or  ill  will,  is  no 
ground  for  challenging  a  juror.  If,  from  the  declaration  made 
by  this  gentleman,  you  should  be  led  to  think  he  has  any  ill 
will  toward  the  prisoner — any  personal  feeling  against  him — 
you  will  find  against  the  crown,  and  in  favor  of  the  challenge; 
but  if  you  think,  from  the  notoriety  of  the  facts  naturally  com- 
ing to  the  knowledge  of  the  juror,  he  made  a  declaration  of 
opinion  on  such  matters,  without  any  ill  will  or  personal  feel- 
ing toward  the  prisoner,  you  will  find  against  the  challenge." 
Counsel  for  the  prisoner  objected  to  this  wa^"-  of  leaving  the 
question  to  the  triors,  and  submitted  it  should  be  whether  the 
juror  had  in  fact  formed  any  opinion  as  to  the  prisoner's  guilt 
or  innocence.  Crampton,  J. :  "  The  result  of  your  argument 
would  be  that  a  second  or  a  third  trial  could  never  be  had  in 
any  county.  I  do  not  feel  the  least  doubt  upon  the  subject." 
Joy,  Chal.  205. 

The  conclusion,  upon  all  the  English  authorities,  is  that 
opinions  formed  upon  the  merits,  and  expressed  even  in  a 
manner  indicating  malice  or  ill  will,  are  a  ground  of  challenge 


,A       !  %  '"ii  i.-.-  f  .  •' 

^»  mmx: 


■i     Pl^ 


.^ 


880 


AMERICAN  CRIMINAL  REPORTS. 


on  the  favor  only,  and  thixt  mere  expressions  of  opinion  will 
not  sustain  the  challenge. 

Temple  v.  Sumner,  Smith  (N.  11.),  '226,  decided  in  1808,  but  not 
published  until  1879,  was  a  motion  for  a  new  trial  because  one 
of  the  jurors  was  present  and  heard  the  evidence  at  a  former 
trial,  had  formed  and  declared  an  opinion  against  the  defend- 
ant, and,  when  the  jury  were  impaneled,  untruly  declared  that 
he  had  not  heard  the  cause  tried,  and  had  not  formed  or  ex- 
pressed any  opinion.  Smith,  C.  J. :  "  Supposing  the  facts 
established — and  1  think  they  are  clearly  established — was  it 
good  cause  of  challenge?  It  is  among  the  most  essential 
rights  of  our  citizens  to  be  tried  by  judges,  which  includes 
jurors,  fi  J  impartial  as  the  lot  of  humanity  will  admit.  Const., 
p.  1,  art.  35.    This  is  no  new  right  granted  by  the  Constitution. 

The  common  law  speaks  the  same  language.  1  Sell.  475; 
Gilb.  Com.  PI.  95,  etc.  The  theory  of  the  common  law  is  that 
jurors  should  come  to  a  trial  with  minds  like  white  paper, 
upon  which  prejudice,  passion  or  calumny,  hope,  interest,  or 
fear  have  made  no  stain  or  blot.  *  The  law  has  so  watchful 
an  eye  to  the  pure  and  unbiased  administration  of  justice 
that  it  will  never  trust  the  passions  of  mankind  in  the  decis- 
ion of  any  matter  of  right.'  3  Burrows,  1856.  *  *  *  In 
England  the  distinction  (between  principal  challenges  and 
challenges  to  the  favor)  seems  to  have  arisen  from  the  circum- 
stance that  the  writ  to  the  sheriflF  to  summon  the  jury  laid 
down  certain  rules  for  his  government,  such  as  that  the  per- 
sons summoned  should  be  free  and  lawful  men  of  the  county, 
of  certain  qualifications  in  point  of  property,  by  whom  the 
truth  of  the  matter  might  be  better  known,  and  who  are»in 
no  wise  of  kin  to  either  party.  This  writ  was  supposed  to 
specify  all  causes  of  objection  from  partiality  or  incapacity. 
The  word  'free'  was  understood  to  mean,  not  only  one  having 
freehold  lands,  but  freedom  of  mind;  one  who  stands  indiffer- 
ent— no  more  inclining  to  the  one  side  than  the  other.  If  the 
person  returned  by  the  sheriff  manifestly  did  not  come  within 
the  intent  of  the  writ,  this  was  a  principal  challenge;  and  the 
court,  on  being  ascertained  of  the  fact,  declared  the  juror  in- 
competent. But  experience  soon  showed  that  there  miglit  be 
other  circumstances  which  induced  a  suspicion  of  partiality, 
thouf '  no  express  malice  or  favor.  Here  the  court  referred 
it  to  c  rtain  persons  (the  triors),  to  judge,  in  their  discretion 


STATE  V.  SAWTELLE. 


8S1 


and  conscience,  whether  the  juror  was  indifferent  as  he  stood 
unsworn.  *  *  *  In  some  books  we  find  it  laid  c  owr  that, 
if  the  juror  hath  declared  his  opinion,  touching  the  raucter,  it 
is  a  principal  challenge.  In  others,  where  the  principal  chal- 
leno-es  are  professed  to  be  enumerated,  we  find  this  omitted. 
3  G°  Bacon,  75C;  2Tidd,  Prac.  780;  Trials  per  Pais,  141;  Trial 
of  Fries,  2d  Append.  42.  But  neither  of  these  quotes  any 
authority.  *  *  *  The  truth  is  that  having  previously  de- 
clared an  opinion  may  afford  evidence  —more  or  less  strong, 
according  to  the  circumstances — of  suspicion,  of  bias  or  par- 
tiality. If  a  man  had  heard  a  cause,  and  should  merely  express 
an  opinion  in  favor  of  one  party,  it  would  afford  but  slight 
evidence  of  bias  or  partiality.  *  »  *  Knowledge  is  no 
proof  of  malice,  and  knowledge  of  the  particular  cause  no 
exception  to  a  juror.  Certainly  it  was  none  in  ancient  times. 
The  circumstances  attending  the  transaction  must  determine 
whether  the  juror  is  indifferent,  or  not.  5  State  Tr.  (8vo.)  125 
{Cook's  Case,  13  How.  State  Tr.  311-338).  Our  statute  men- 
tions this  as  a  cause  of  challenge  (Ed.  1805.  p.  108).  Indeed  it 
allows  the  party  to  ask  the  juror  if  he  is  sensible  of  any  preju- 
dice in  the  cause.  His  prejudices  may  be  proved,  and  every- 
ihinc  which  goes  to  show  that  he  does  not  stand  indifferent. 
Cases  may  easily  be  supposed  where  it  would  be  extremely 
inconvenient  to  Lay  it  down  as  a  rule  that  the  mere  declarati^ii 
of  an  opinion,  especially  a  general  opinion,  should  disqualify 
a  juror." 

Rollins  V.  Ames  (1821),  2  N.  H.  349,  was  a  motion  for  a 
new  trial  on  the  ground  that  Martin,  before  whom,  as  a  mag- 
istrate, the  plaintiff  took  depositions  read  on  the  trial,  was 
foreman  of  the  jury.  The  court  held  the  objection  a  cause  of 
challenge  to  favor  only.  No  other  question  of  law  was  de- 
cided. "Woodbury,  J.,  says :  "  It  is  well  known  that  magis- 
trates are  often  selected  for  the  purpose  of  taking  depositions, 
who,  if  not  unfriendl}'^  to  the  opposite  party,  are  favorably 
disposed  to  him  who  employs  them.  This  fact,  connected 
with  the  circumstance  that  no  person  can  easily  hear  the  tes- 
timony on  only  one  side  of  a  cause  without  forming  some 
opinion  as  to  the  case,  furnishes  a  good  ground  for  the  pre- 
sumption of  a  probable  partiality.  *  *  *  This  challenge, 
in  England,  is  determined  by  triors,  but  here  the  court  uni- 
formly decide  on  its  validity;  and  we  entertain  no  doubt  that 


38^ 


AMERICAN  CRIMINAL  REPORTS. 


;i.^'-.  ^p 


in  the  present  instance  it  should  prevail,  if  it  had  boon  taken 
seasonably."  In  other  words,  the  court  declared  that,  uj)on 
the  evidence  reported,  thoy  would  have  fountl,  as  matter  of 
fact,  that  the  juror  was  not  indifferent. 

State  V.  Webster  (1813),  13  N.  II.  491,  was  an  indictment  for 
larceny  of  a  horse.  The  dofon  lint  was  first  tried  on  an  indict- 
ment for  entering  a  shop  and  stealing  property  therefrom. 
The  evidence  on  this  trial  tended  to  prove  that  the  defendant 
was  also  guilty  of  stealing  the  horse.  Immediately  after  tlie 
jury  in  that  case  retired,  a  jury  was  impaneled  in  the  prosont 
case.  In  reply  to  inquiry,  several  jurors  stated  that  they 
wore  present  during  the  former  trial,  and  had  forinad  an  opin- 
ion from  the  evidence  in  that  case.  The  counsel  for  the 
defendant  objected  to  them  on  the  ground  tjiat  they  were  not 
impartial,  and  had  prejudged  the  case,  but  the  objection  w.is 
overruled.  It  was  held  that  the  objection  should  have  been 
sustained,  and  a  new  trial  was  granted.  Gilchrist,  J.,  says: 
"  The  commonest  regard  to  justice  would  require  that  a  party 
should  not  be  compelled  to  trust  even  his  property — much 
less,  as  in  this  case,  his  reputation  and  liberty — to  the  action 
of  a  tribunal  by  whom  the  merits  of  his  case  had  been  pre- 
judged. It  is  immaterial  in  what  manner  a  juror  becomes 
biaso'I.  The  question  is,  is  he  impartial,  or  is  he  not?  IIo 
will  be  unfitted  to  do  justice  to  the  parties,  whether  he  derive 
his  impressions  from  reading  the  newspapers,  from  common 
report,  from  casual  conversations  with  his  neighbors,  or  from 
hearing  witnesses  testify  in  a  court  of  justice."  The  case 
received  little  consideration.  The  distinction  between  chal- 
lenges for  principal  cause  and  to  the  favor  was  apparently 
overlooked.  It  sufficiently  appears,  from  the  cases  al)ove 
cited,  that  one  who  was  present  as  a  spectator  and  heard  the 
evidence  in  one  case  was  not,  for  that  reason  alone,  dis()uali- 
fied,  by  intendment  of  law,  from  serving  as  a  juror  in  the  next 
case,  on  substantially  the  same  issue.  No  common  law  in- 
stance of  a  principal  challenge  for  that  cause  is  found  in  tlie 
books.  The  contrary  was  held  in  Durell  v.  Mosher,  8  Jolins. 
445,  in  Atkinson  V.  Allen,  12  Vt.  619,  and  in  Whitner  v.  Ham- 
lin, 12  Fla.  18.  It  was  a  ground  of  challenge  to  favor,  and 
the  judgment  in  State  v.  Wehster,  is  to  be  considered  merely  as 
a  determination  of  fact. 

State  V.  Howard,  17  N.  H.  171,  decided  in  1845,  was  an 


STATE  V.  SAWTELLE. 


383 


indictment  for  murder.    On  a  previous  trial  the  jury  failed  to 
a'Tee.    Some  of  the  jurors,  on  inquiry,  answered  that  they 
had  hoard   considerable  sai'J  resjxjcting  the  case,  and,  boin;^ 
objected  to  for  that  rer.3on  by  the  defendant,  the  court  ordered 
that  they  be  passed.    But  suosequently,  after  more  than  150 
jurors  had  been  called,  without  completing  the  jury,  the  court 
ruled  that  it  was  not  a  sufficient  legal  objection  to  a  juror  that 
he  had  heard  about  the  case;  and,  others  having  answered  in 
the  same  way,  the  court  refused  to  set  them  aside  for  that 
reason — they  declaring  that  they  were  not  aware  that  they 
had  formed  any  opinion,  and  that  they  were  not  sensible  of 
any  bias.    The  defendant  moved  for  a  new  trial,  and  intro- 
duced depositions  of  several  witnesses  showing  that  one  of  the 
jurors,  "  some  two  months  before  the  trial,  said  at  different 
times  that  he  had  no  doubt  that  the  defendant  killed  Phebe 
Hanson,  and  that  he  ought  to  be  hung  without  judge  or  jury;" 
that  another  "  said,  a  week  or  ten  days  after  the  murder,  that 
if  he  was  on  the  jury  he  would  hang  him  [the  defendant] 
certainly,  and  that  at  other  times  he  said  that  he  ought  to  be 
hung,  and  that  if  he  was  on  the  jury  he  would  hang  him;" 
and  that  two  other  jurors  had  made  similar  declarations. 
The  affidavits  of  these  jurors  were  introiluced  by  the  State, 
and  each  testified  that  he  had  no  recollection  of  using  such 
language;  that  he  had  in  fact  formed  no  opinion,  and  had  no 
bias.    Parker,  C.   J.,  says  ( pages  189,  190,  192,  105) :  "If  it 
be  assumed  that  all  these  jurors  uttered  the  words  attributed 
to  them,  it  is  hardly  necessary  to  say  that  they  are  far  from 
showing  conclusively  that  the  jurors  did  not  in  fact  stand 
indifferent.    We  do  not  regard  the  testimony,  standing  alone, 
as  impeaching  the  honesty  of  the  jurors.    It  appeared,  from 
the  examinations  made  at  the  time  of  impaneling  the  jury,  that 
the  case  had  been  a  subject  of  conversation  throughout  all  the 
county.    It  was  a  matter  of  course,  under  the  circumstances 
attending  it,  that  it  should  be  so;  and  it  is  but  natural  that 
expressions  like  most  of  those  attributed  to  these  jurors  should 
be  made,  not  only  without  any  settled  opinions  upon  the  sub- 
ject, but  merely  as  a  matter  of  conversation,  forgotten  soon 
afterward.    *    »    »    But  the  case,  as  now  presented  before 
us,  has  led  to  inquiries  whether  the  mere  expression  of  an 
opinion  by  a  juror  in  common  conversation,  without  anything 
to  show  ill  will,  hostility  or  a  fixed  determination  or  belief,  is 


1 

.  ■   f vi'r 

( 

f   i".. 


Sit'' 


'■  <! 


884 


AMERICAN  CRIMINAL  REPORTS. 


such  a  legal  ground  of  challenge,  under  our  statute,  that  tlie 
court  are  to  inquire  no  further.  *  *  *  The  weight  of 
authority  appears  to  be  that  the  expression  of  opinion,  unless 
under  circumstances  indicating  malice  or  ill  will,  wr,  perhaps,  a 
fixed  determination,  is  only  a  ground  of  challenge  to  tlie 
favor.    *    *    * 

The  court  may,  in  its  discretion,  inquire  under  what  circum- 
stances the  opinion  was  expressed,  and,  upon  such  inquiry, 
determine  whether  the  opinion  was  merely  a  casual  remark, 
which  could  have  very  little  tendency  to  show  bias,  and  which 
might  be  entirely  overcome  by  other  circumstances,  so  as  to 
leave  no  doubt  that  the  juror  stands  indilTerent.  If  it  should 
appear  on  such  inquiry  that  the  expression  of  opinion  indi- 
cated malice,  that  would  furnish  conclusive  evidence  that  the 
juror  did  not  stand  indifferent.  *  *  *  On  this  view  of  the 
case,  the  defendant  is  not  shown  to  have  had  legal  cause  for 
principal  challenge  against  the  jurors  to  whom  he  now  excei)t8, 
as  having  expressed  opinions  before  the  trial;  and  it  follows, 
as  a  consequence,  that  he  is  not  now  entitled  to  a  new  trial, 
unless,  upon  the  examination  at  this  time  of  the  circumstances 
shown  in  evidence,  it  appears  that  the  jurors  did  not  stuiul 
indifferent  in  the  cause  when  they  were  impaneled.  Tlio  evi- 
dence before  us  does  not  serve  to  show  that  these  jurors  did 
not  standi  indifferent.  Still  less  is  there  anything  indicating 
that  they  had  any  fixed  belief,  or  any  determination  to  find 
the  defendant  guilty;  and  the  defendant  therefore  has  not,  in 
this  view  of  the- question  and  on  this  evidence,  entitled  himself 
to  have  the  verdict  set  aside."  I^  either  Temple  v.  Sumner  nor 
Eex  V.  Edmonds  was  cited,  though,  undoubtedly,  both  would 
have  been  had  they  come  to  the  notice  of  the  court. 

It  is  a  circumstance  worthy  of  note,  and  entitled  to  great,  if 
not  decisive,  weight  upon  the  question,  that  three  courts — this 
court  in  18U8,  the  court  of  King's  bench  in  1821,  and  this  court 
again  in  1845 — upon  independent  examination,  came  to  the 
same  conclusion,  namely,  that  at  common  law  the  mere  fact 
that  a  juror  has  formed  and  expressed  an  opinion  upon  the 
merits  is  not  a  ground  of  principal  challenge,  and  does  not 
necessarily  disqualify  him  from  serving  on  the  trial,  but  is 
merely  evidence  to  be  presented  and  weighed  with  other  evi- 
dence on  a  challenge  to  the  favor. 

In  March  v.  Railroad  Co.  (1849),  19  N.  H.  372,  a  juror  "de- 


STATE  V.  SAWTELLE. 


8S5 


nicd  that  ho  was  sensible  of  any  bias; "  i;  it  it  appoarodto  the 
court  "  that  ho  had  strong  feelings  in  relation  to  the  case,'' 
and  ho  was  excluded.  It  was  held  that  the  finding,  couph3d 
with  the  exclusion,  was,  in  substance,  a  finding  that  the  juror's 
feelings  wore  so  strong  that  he  did  not  stand  indifTerent;  that 
upon  his  demeanor,  and  other  circumstances,  it  might  properly 
bo  so  found,  notwithstanding  his  denial  of  bias. 

In  State  v.  Pike  (1870),  49  N.  II.  399,  407,  a  juror  testified 
that  he  had  read  the  reports  in  the  new8|)apers,  and  from  them 
derived  the  impression  that  the  defendant  was  guilty,  and 
that,  taking  the  reports  to  be  true,  he  should  think  him  guilty; 
that  he  paid  little  attention  to  such  reports;  that,  notwith- 
standing the  impression  ho  had  received  from  them,  he  thought 
he  could  try  the  defendant  on  the  evidence  without  prejudice; 
and  that  he  thought  he  had  no  opinion  or  impression  which 
would  prevent  him  from  trying  the  defendant  impartially  on 
the  evidence.  The  court  found  him  indifferent,  and  he  was 
sworn.  It  was  held  that  the  question  of  the  juror's  indiffer- 
ence was  one  of  fact,  to  be  decided  by  the  court  at  the  trial; 
that  their  decision  stands  like  the  verdict  of  a  jury,  to  be 
reversed  only  when  it  is  manifestly  against  law  and  evidence; 
and  that  there  was  no  such  ground  for  reversing  their  decision. 
This  fully  disposed  of  the  question.  It  is,  in  sul)atance,  a  judg- 
ment that  a  juror's  impression  or  opinion  on  the  merits  is  cause 
of  challenge  to  the  favor,  and  that  the  court's  finding  thereon, 
if  warranted  by  the  evidence,  is  final  and  conclusive.  State  v. 
Joim,  50  N.  II.  309,  381. 

The  provincial  act  of  1754  provided  "that  the  justices  of  the 
respective  courts  aforesaid  are  hereby  directed,  upon  motion 
from  either  party  in  the  cause  to  be  tried,  to  put  any  juror  to 
answer  upon  oath  whether  returned  as  aforesaid,  or  as  a  talis- 
man, whether  he  doth  expect  to  gain  or  lose  by  the  issue  of 
the  cause  then  depending  ?  Whether  he  is  in  any  ways  related 
to  either  party  ?  And  whether  he  hath  been  of  counsel  to 
either  party,  or  directi}'  or  indirectly  given  his  opinion  or  is 
sensible  of  any  prejudice  in  the  cause?  And  if  it  shall  appear 
to  the  court,  that  such  juror  does  not  stand  indifferent  in  said 
cause,  he  shall  be  set  aside  from  the  trial  of  that  cause,  and 
another  appointed  in  his  stead."  Prov.  Laws  1771,  p.  191,  §  3. 
This  statute  ha^^  ever  since  remained  in  force,  without  material 
alteration,  except  the  am6ndments  of  1S42  and  ls7S,  which  do 

25 


01. 


386 


AMERICAN  CRIMINAL  REPORTS. 


« v 

fl 

il  ^ 

18  ■'■' 

111  ' 

uB 

I!     ;iH 

m 

not  affect  the  present  question.  Laws  N".  H.  (Ed.  1780),  p.  45; 
Id.  (Ed.  1797),  p.  110;  Id.  (Ed.  1805),  pp.  108,  109;  Id.  (Ed! 
1815,  p.  123;  Id.  (Ed.  1830),  pp.  407,  468;  Rev.  St.  c.  170, 
§  21;  Gen.  St.  c.  194,  §  22;  Coram.  Rep.  1878,  c.  207,  §  22; 
Gen.  Laws,  c.  213,  §  23.  It  directed  that  jurors  should,  on 
motion,  be  required  to  answer  whether  they  had  given  an 
opinion  upon,  or  prejudged,  the  cause,  although  the  answer 
might  "touch  the  dishonour  or  discredit  of  the  juror"  (Co.  Litt. 
15Sb),  and  authorized  the  court  to  try  the  question  of  their 
indifference,  instead  of  submitting  it  to  triors.  In  all  other 
particulars,  at  least,  it  merel}'  re-enacted  the  common  law. 
The  question  whether  the  whole  statute,  except  as  it  affected 
the  method  of  trial,  was,  or  was  not,  declaratory  of  the  com- 
mon law,  need  not  be  considered. 

"  Indifferent "  is  used  in  the  statute  in  its  established  common 
law  sense.  Mayo  v.  Wilson,  1  N.  II.  53,  55.  The  statute  does 
not  declare  that,  upon  proof  of  one  or  of  all  the  causes  men- 
tioned, a  juror  shall  be  deemed  disqualified.  On  the  contrary, 
it  assumes  that  a  juror  may  have  a  minute  and  remote  interest 
as,  for  example,  in  fines  payable  to  tHie  State  or  the  county;  may 
expect  to  gain  or  lose  by  the  issue  of  the  cause,  as  if  his  exjjccta- 
tion  is  groundless;  may  be  remotely  related  to  one  of  the 
parties;  or  may  have  formed  and  expressed  an  opinion — and 
nevertheless  be  found  indifferent.  It  "seems  to  imply,"  says 
Parker,  C.  J.  {State  v.  Howard,  17  N.  II.  194),  "that  the  mere 
expression  of  opinion  may  not  furnish  cause  for  setting  aside 
the  juror,  without  further  inquiry;  for,  although  it  provides 
that  the  juror  may  be  inquired  of  '  whether  he  has,  directly  or 
indirectly,  given  his  opinion,  or  has  formed  an  opinion,  or  is 
sensible  of  any  prejudice  in  the  cause,'  it  does  not  provide  that 
such  an  expression  of  opinion  shall  be  a  princi))al  cause  of  chal- 
lenge, or  a  conclusive  reason  i'or  rejecting  the  juror,  but  enacts 
that,  'if  it  appears  that  any  juror  does  not  stand  indifferent  in 
any  cause,  he  shall  be  set  aside.' "  So  Smith,  C.  J.,  citing  the 
statute,  says :  "  All  challenges  are  tried  by  the  coqrt.  and  if 
it  appears  to  the  court,  judging  on  the  broadest  ground,  that 
the  juror  does  not  stand  indifferent  in  the  cause,  he  is  set 
aside."  Temple  v.  Sumner,  Smith  (N.  II.),  229.  Interroga- 
tories not  mentioned  in  the  statute  may  be  put  to  jurors,  and 
other  witnesses  may  be  examined.  Pierce  v.  State,  13  K  II. 
536,  554-556.    Lord  Mansfield  declared  "  that  anj'  degree— 


STATE  V.  SAWTELLE. 


3S7 


even  the  smallest  degree — of  interest  in  the  question  depend- 
in"-  is  a  decisive  objection  to  a  witness,  and  much  more  to  a 
iuror.  *  *  *  The  minuteness  of  the  interest  won't  relax 
the  objection.  For  the  degrees  of  influence  can't  be  measured. 
No  line  can  be  drawn  but  that  of  a  total  exclusion  of  all 
degrees  whatsoever."  Ilesketh  v.  BraddocTc,  3  Burrows,  1847, 
1856.  But  the  jurors  were  in  fact  interested  in  the  result  of 
the  trial  of  all  offenders  punishable  by  fine  to  the  crown,  or 
whose  lands  or  goods  were  forfeited  to  the  crown  upon  con- 
viction. To  kindred,  also,  as  a  ground  of  principal  challenge, 
there  must  be  a  limit,  notwithstanding  Coke  (Co.  Litt.  157a) 
says,  "  And,  how  far  remote  soever  he  is  of  kindred,  yet  the 
challenge  is  good."  Blackstone  (3  Bl.  Comm.  363)  puts  the 
limit  at  the  ninth  degree.     Plow.  425;  1  Chit.  Cr.  Law,  541. 

After  the  law  required  the  jurors  to  be  taken  from  the  body 
of  the  county,  and  that  from  48  to  72  be  summoned  at  each 
term  (A.  D.  1730),  there  was,  in  civil  cases,  seldom  occasion 
for  challenges  to  the  polls,  and  still  less  for  trying  them,  if 
made,  because,  ordinarily,  it  was  easy  to  obtain  out  of  the 
whole  number  twelve  persons  satisfactory  to  both  parties. 
Though  the  statutes  had  no  application  to  crown  prosecutions, 
challenges,  even  in  criminal  cases  (except,  perhaps,  indictments 
for  treason  -  ^d  other  political  offenses),  became  comparatively 
rare  The  more  enlightened  views  of  courts  and  counsel  led 
to  a  more  liberal  administration  of  the  criminal  law.  In  1817 
it  was  said  that,  "in  the  case  of  felony,  challenges  are  very 
unusual."  BmndreWs  Case,  32  How.  State  Tr.  755,  776. 
"  A  challenge  to  the  polls  for  cause  seldom  occurs  in  prac- 
tice; for  the  counsel,  either  for  the  defendant  or  the  prosecu- 
tion, have  only  to  intimate  to  the  clerk  of  arraigns  or  clerk  of 
the  peace  that  they  desire  that  a  particular  juror  or  jurors 
named  may  not  be  put  upon  the  jur^^  and  he  will,  in  general, 
refrain  from  calling  them."  Archb.  Cr.  Prac.  &  PI.  165. 
"In  practice  it  has  been  usual,  as  a  matter  of  courtesy,  to 
allow  peremptory  challenges  in  civil  cases  and  misdemeanors, 
but  it  is  not  a  matter  of  right."  Parke,  B.,  in  Creed  v.  Fisher 
(1854),  9  Exch.  472,  474.  "  No  one  *  *  *  ever  heard  of 
any  imjiediment  being  interposed  to  the  defendant  or  plaintiff, 
in  modern  times,  objecting  to  any  number  of  jurymen  without 
cause,  and  they  are  always  withdrawn."  Parke,  B.,  in  Gray 
V.  lieg.  (1844),  11  Clark  &  F.  427,  470;  Marsh  v.  Copj)ock,  9  Car. 


3SS 


AMERICAN  CRIMINAL  REPORTS. 


&  P.  4S0;  Mamell  v.  The  Queen,  8  El.  &  Bl.  54, 103-106, 111- 
113;  Eeg.  v.  Blakeman,  3  Car.  &  K.  97.  In  practice,  there 
was  little  occasion  for  invoking  the  strict  law  relating  to 
the  qualification  of  jurors.  It  fell  into  disuse,  and  a  critical 
examination  of  it  became  unnecessary.  Text  writers  stated 
merely  the  general  doctrine,  without  going  into  particular 
distinctions,  or  attempting  to  draw  the  line  accurately'  between 
challenges  for  principal  cause  and  to  the  favor.  Thus,  Buller, 
writing  in  1767,  says:  "If  a  juryman  be  related  to  either 
party,  or  interested  in  the  cause,  or  have  declared  his  opinion, 
or  have  been  arbitrator  in  the  cause,  it  is  a  good  cause  of  chal 
lenge;  but  I  do  not  enter  at  large  into  these  matters,  because, 
since  the  3  Geo.  II.,  by  which  one  panel  is  returned  for  the  whole 
county,  and  not  less  than  forty-eight  in  such  ])anel,  causes  of 
challenge  are  not  so  minutely  entered  into  as  formerly."  Bull, 
N.  P.  307.  "  Many  of  those  text  writers,"  says  Parke,  B.,  speak- 
ing upon  the  law  of  challenge, "  the  more  modern  particularly, 
only  repeat  those  who  preceded  them,  and  the  more  correct 
notion  of  the  common  law  will  be  obtained  from  the  older." 
Gray  v.  Ideg.,  11  Clark  &  F.  427,  471.  Upon  this  subject, 
implicit  reliance  can  be  put  upon  none  later  than  the  middle 
of  the  eighteenth  century.  Blackstone,  for  example,  says  it  is  a 
principal  cause  of  challenge  that  the  juror  is  the  "party's 
master."  3  Bl.  Comm,  303.  That  in  this  he  is  mistaken,  the 
authorities  are  decisive.  21  Edw.  IV,  p.  07,  pi.  52;  22  Kdw, 
IV.  p.  1,  pi.  4;  14  Hen.  VII.  p.  2,  pi.  0;  Brooke,  Abr.,  "Chal- 
lenge," 71,  183;  Fitzh.  Abr.,  "Challenge,"  04;  Moore,  47(»; 
Cham  V.  Jlattheio,  Cro.  Eliz.  581;  Cro.  Jac.  21.  It  is  ])rol)al)le 
that  this  and  other  errors  on  the  subject  found  in  the  text- 
books were  due  to  the  liberality  of  modern  practice — to  mis- 
taking the  practice  for  the  law. 

Except  on  the  rare  occasions  of  difficulty  in  obtaining  a  jury, 
it  has  always  been  the  practice  in  this  State  to  excuse  juiors 
who  have  heard  about,  or  have  knowledge  of,  the  facts  in  issue, 
without  stopping  to  inquire  into  the  extent  and  character  of 
their  information.  State  v.  Howard,  17  N.  II.  171,  190,  194 
Hence  the  impression,  widely  prevalent  among  those  of  the 
profession  who  have  had  no  occasion  to  examine  the  subject, 
that  a  knowledge  of  any  of  the  facts  in  issue  legally  disqualifies 
a  juror.  A  similar  practice  has  doubtless  prevailed  in  other 
States.    To  this  practice,  in  part,  at  least,  may  be  due  some  of 


STATE  V.  SAWTELLE. 


389 


the  early  and  little-considered  judgments — as,  for  example, 
Twcedi/  V.  Bt'iish  (1786),  Kirby,  13;  Blake  v.  Millspaugh  (ISOCy), 
1  Johns.  31G;  State  v.  Godfrey  (1817),  Jirayt,  170 — that  at  com- 
mon law  a  juror  is  disqualified  by  a  formed  and  expressed 
opinion. 

The  decisions  in  this  country  on  the  subject  are  numerous 
and  conflicting.  An  extended  review  of  them  is  not  practic- 
able, nor  would  it  be  profitable.  A  few  of  them  are  collected 
in  1  Bish.  Cr.  Proc.  (3d  Ed.),  §  909,  note,  and  in  the  notes  to 
Smith  V.  Fames,  36  Am.  Dec.  515,  521-531.  In  many  of  the 
States  the  causes  of  challenge  are  regulated  by  statute.  The 
early  departure  from  the  common  law  has  been  corrected  in 
some  States  b\'^  legislation,  and  in  others  by  judicial  action. 

The  New  York  courts,  beginning  with  Biake  v.  Millspavgh, 
supra,  held  that  an  opinion  formed — whether  expressed  or 
not,  whether  founded  on  knowledge  or  on  reports,  and  though 
the  juror  believed  he  could  try  the  case  impartially — was  a 
ground  of  principal  challenge,  and,  as  matter  of  law,  a  dis- 
qualification. Prhvjle  V.  Iluse,  1  Cow.  432,  435;  Ex  parte 
Vermibjea,  6  Cow.  555;  People  v.  Verniibjea,  7  Cow.  108,  121- 
130;  People  v.  Mather,  4  Wend.  229;  People  v.  Bodine,  1  Denio, 
281;  People  v.  ILmeyniati,  3  Denio,  121;  Cancemi  v.  People,  16 
N.  Y.  501.  Under  this  doctrine  it  was  found  difficult,  in  many 
cases,  to  obtain  a  jury.  In  1844,  Mary  J3odine  was  indicted  in 
Richmond  county  for  the  murder  of  her  brother's  wife  and  of 
his  child,  for  arson,  for  burglary,  and  for  receiving  stolen 
goods.  She  was  tried  in  that  county  on  one  of  the  indictments 
for  murder,  and  the  jury  failed  to  agree.  An  a])plication  by 
the  defendant  for  a  change  of  venue  was  denied.  People  v. 
Bodhie,  7  Hill,  147.  Anotiier  attempt  made  to  try  her  in  that 
county  on  the  same  indictment  failed,  because  of  the  imprac- 
ticability of  obtaining  an  indifferent  jur}''.  The  indictments 
were  then  removed  into  the  Supreme  Court,  and  sent  to  the 
I^ew  York  Circuit  to  be  tried.  In  March,  1845,  the  defendant 
was  tried  on  the  indictment  for  murder,  and  found  guilty. 
The  verdict  was  set  aside  for  error  in  impaneling  the  jury 
{People  V.  Bodine,  1  Denio,  281),  and  the  case  came  on  for  a 
new  trial  in  November,  1845,  "at  which  time  about  three 
weeks  were  spent  in  the  effort  to  obtain  a  jury,  and  over  six 
thousand  jurors  were  summoned;  about  four  thousand  were 
tried  on  challenges,  and  all  set  aside  but  ten." 


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390 


AMERICAN  CRIMINAL  REPORTS. 


The  parties  being  satisfied  that  a  jury  could  not  be  obtained, 
the  trial  was  suspended  by  consent.  The  venue  was  subse- 
quently changed  to  Orange  county,  where  the  defendant  was 
tried  and  acquitted.  People  v.  Bodine,  1  Edra.  Sel.  Cas.  36, 
82,  95.  "Of  these  six  thousand  persons  summoned  as  jurors, 
probably  not  fifty  were  legally  disqualified  from  serving;  and 
instead  of  fifteen  days  being  fruitlessly  expended,  and  thou- 
sands  being  called  away  from  their  business,  half  an  hour 
would  have  sufficed  for  impaneling  an  impartial  jury,  had  the 
process  been  regulated  by  the  rules  of  the  common  law,  instead 
of  those  arbitrarily  imposed  by  the  Supreme  Court."  9  Month. 
Law  Eep.  193,  199.  One  grave  evil  resulting  from  this  de- 
parture from  the  doctrine  of  the  common  law  was  that  it 
enabled  any  one  to  escape  jury  service  by  merely  expressing 
an  opinion  on  the  merits.  Joy,  Chal.  191,  192,  207;  5  Alb. 
Law  J.  81,  82.  "It  is  reported  that  many  (jurors)  who  were 
summoned  in  Bodine's  case  had  the  precaution,  before  being 
called,  to  remark  to  a  bystander,  '  I  think  Polly  Bodine  ought 
to  be  hanged; '  and  then,  when  his  name  was  announced,  he 
truthfully  confessed  that  he  had  expressed  an  opinion,  and  was 
excused,  of  course."  9  Month.  Law  Rep.  193,  200.  To  obtain 
a  jurj'in  any  case  of  public  interest  and  notoriety  was  difficult. 
In  the  case  of  Foster,  tried  for  murder  in  1871,  over  1,000 
jurors  were  summoned,  and  a  week's  time  consumed  in  getting 
a  jury.  4  Alb.  Law  J.  281.  To  remedy  the  mischief,  the 
legislature  enacted,  in  1872  (Laws  1872,  c.  475),  that  "  the  pre- 
vious formation  or  ex[)ression  of  an  opinion  or  impression  in 
reference  to  the  circumstances  on  which  any  criminal  action 
at  law  is  bas6d,  or  in  reference  to  the  guilt  or  innocence  of 
the  prisoner,  or  a  present  opinion  or  impression  in  reference 
thereto,  shall  not  be  a  sufficient  ground  of  challenge  for  prin- 
cipal cause,  provided  the  person  proposed  as  juror  shall  declare 
on  oath  that  he  verily  believes  that  he  can  render  an  impartial 
verdict  according  to  the  evidence,  and  that  such  opinion  or 
impression  will  not  bias  or  influence  his  verdict,  and  provided 
the  court  shall  be  satisfied  that  the  proposed  juror  does  not 
entertain  such  a  pi3sent  opinion  as  would  influence  his  verdict 
as  a  juror."  The  act  was  re-enacted  in  (^ode  Cr.  Proc,  §  376. 
People  V.  Casey,  96  N.  Y.  115, 118.  As  construed  and  adminis- 
tered, it  goes  far  toward  restoring  the  common  law.  Under  it 
the  court  holds  that  notwithstanding  a  juror  has  formed,  ex- 


STATE  V.  SAWTELLE. 


391 


pressed,  and  still  entertains  an  opinion  upon  the  merits,  which 
it  will  require  evidence  to  remove,  yet  if  he  declares  on  his  oath 
that  he  believes,  and  the  court  finds,  that  he  can  render  an 
impartial  verdict  according  to  the  evidence,  he  is  a  competent 
juror.  People  v.  Wilhon,  109  N.  Y.  345, 351;  Balho  v.  People,  80 
N.  Y.  484;  Coxv.  People,  Id.  500;  People  v.  Buddensieck,  103  N. 
Y.  487.  In  Stokes  v.  People.,  53  N.  Y.  164,  the  act  was  held 
constitutional,  upon  the  ground  that  it  was  intended  to  secure, 
and  does  secure,  a  fair  and  impartial  trial.  The  court  say 
(pages  171,  172) :  "  Any  act  of  the  legislature  providing  for 
the  trial  otherwise  than  by  a  common-law  jury  composed  of 
twelve  men  would  be  unconstitutional  and  void,  and  any  act 
requiring  or  authorizing  such  trial  by  a  jury  partial  or  biased 
against  either  party  would  be  a  violation  of  one  of  the  essen- 
tial elements  of  the  jury  referred  to  and  secured  by  the  Con- 
stitution." It  is,  in  legal  effect,  a  judgment  that  the  statute  is 
declaratory  of  the  common  law. 

It  was  held  in  Vermont  that  one  who  has  expressed  an  opin- 
ion upon  the  merits  is  not  a  competent  juror,  although,  when 
called  at  the  trial,  he  testifies  that  he  has  then  no  opinion,  and 
can  try  the  case  impartially  upon  the  evidence.  State  v.  God- 
frey, supra:  State  v.  Clark  (1870),  42  Vt.  629.  It  is  no  objec- 
tion to  a  juror  that  he  heard  the  evidence  at  a  former  trial  of 
the  case  and  formed  an  opinion  thereon,  if  he  has  not  expressed 
it.  Boardman  v.  Wood  (1831),  3  Vt.  570.  In  State  v.  Phair 
(1875),  48  Vt.  366,  the  court  were  urged,  but  declined,  to  hold 
that  an  opinion  formed  upon  the  merits,  though  never  ex- 
pressed, disqualifies  a  juror.  Royce,  J.,  delivering  the  opinion 
says  (l)age  377):  "  If  any  new  rule  is  to  be  adopted,  it  seems 
to  me  it  would  be  more  reasonable  not  to  make  the  formation 
and  expression  of  an  opinion  the  arbitrary  test  of  a  juror's 
competency,  but  to  permit  an  inquiry  to  be  made  as  to  the 
facts  and  circumstances  upon  which  the  opinion  was  formed; 
and  if,  upon  such  inquiry,  it  should  be  found  that  the  juror 
was  free  from  bias  or  prejudice,  and  could  and  would  fairly 
and  impartially  judge  of  the  matters  to  be  submitted  to  him, 
he  should  be  held  to  be  competent."  This  near  approach  to 
the  common  law  was  adopted  in  substance  by  the  court,  and 
declared  to  be  the  doctrine  of  the  common  law,  in  Stat',  v. 
Meaker  (1881),  54  Vt.  112, 123.  Several  jurors  who  had  formed 
opinions  from  reading  the  newspapers,  and  had  expressed  them, 


t    i 


p'n 


392 


AMERICAN  CRIMINAL  REPORTS. 


■Ml 


but  stated  that  their  opinions  depended  upon  the  correctness 
of  the  newspaper  reports,  that  they  were  conscious  of  no  bias 
or  prejudice  for  or  ajj^ainst  either  party,  and  that  they  could 
try  the  case  impartially  according  to  the  evidence,  were  there 
held  competent.  This  seems  to  be  the  settled  doctrine  in  that 
State.    State  v.  Meyer,  58  Vt.  457. 

In  17S6,  it  was  held  in  Connecticut  that  one  who  had  given 
his  opinion  was  disqualified  from  serving  as  a  juror  in  the 
cause.  Tweedy  v.  Brush,  Kirb}',  13.  In  the  later  cases  the 
expression  of  opinion  is  held  to  be  cause  of  challenge  to  the 
favor  only,  and  the  question  of  the  juror's  comf)etency  is  de- 
termined by  the  court  upon  all  the  evidence.  State  v.  Potter 
(1840),  18  Conn.  IGG,  171-175;  State  v.  Alien  (1879),  4(5  Conn. 
531,  546,  547;  State  v.  lloyt  (1880),  47  Conn.  518,  530,  531. 
"  !Nineteen-twentioths  of  the  intelligent  men  of  the  county 
where  a  homicide  has  taken  ])laco,  and  the  fact,  with  the  cir- 
cumstances attending  it,  has  been  published  in  the  newspa])ors 
would  be  incapacitated  from  sitting  as  jurors,  if  the  objections 
raised  in  this  case  were  well  founded.  All  of  them  would  read 
the  account,  or  hear  the  facts  detailed  by  some  one  v;ho  had 
read  them.  Most  of  them  would  form  just  such  opinions,  or 
get  just  such  impressions,  as  the  jurors  had  in  tliis  case.  And 
if  we  were  to  adopt  the  principles  and  sustain  the  objections 
which  have  been  urged  upon  us,  we  should  open  our  courts  to 
just  such  judicial  farces  as  the  one  which  has  recently  been 
acted  in  the  case  of  Foster,  in  the  city  of  New  York.  That 
state  of  things  we  must  avoid;  and  we  are  satisfied  that  the 
jurors  selected  under  our  system  can  be  relied  upon  to  try  cases 
impartially,  and  upon  the  evidence  given  in  court,  notwith- 
standing they  may  have  heard  or  read  accounts  of  the  trans- 
action, and  formed  an  opinion,  if  s;uch  it  may  properly  be  called 
therefrom.  Opinions  thus  formed  are  not,  in  their  nature, 
such  as  should  disqualify  a  juror.  If  he  i.s  free  from  partiality 
or  prejudice  derived  from  any  other  source,  his  opinion  is,  as  a 
matter  of  course,  hypothetical,  not  fixed  or  settled,  in  the  sense 
in  which  those  terms  are  used,  when  used  correctly,  in  the  law. 
All  men  take  newspaper  statements  as  current  news,  liable  to 
qualification,  explanation  or  contradiction,  and  when  qualified, 
explained  or  contradicted,  they  change  their  opinions  or  belief 
accordingly,  as  matter  of  course.  *  *  *  The  mind  of 
the  juror  having  such  an  opinion,  impression,  supposition,  or 


STATE  V.  SAWTELLE. 


393 


IWiof  *  *  *  is  certainly  in  no  worse  situation  than  the 
mind  of  a  juror  who  has  heard  one  side  in  court,  making  a 
jyrima  facie  case,  is  to  hear  the  defenm  when  made  upon  the 
other  side,  and  give  it  its  just  weight.  *  *  *  The  opinion 
must  be  formed  in  such  a  way,  or  be  of  such  a  character,  that 
hostility  or  prejudice  toward  the  prisonermay  be  inferred  from 
its  existence  or  expression.  But  hostility  or  prejudice  can  not, 
as  a  rule,  be  inferred  from  an  opinion  formed  and  expressed 
simply  from  reading  or  hearing  stated,  as  current  news  of  the 
(lay,  the  fact  of  a  homicide,  and  the  circumstances  attending 
it.  There  should  be  found  some  other  circumstances,  of  rela- 
tionship, ])artiality,  prejudice,  hostility,  or  ill  will — acting  at 
the  same  time  upon  the  mind,  and  giving  it  a  bias,  or  the  juror 
should  be  accepted.  The  court,  in  its  determination,  should 
be  guided  rather  by  the  existence  or  the  absence  of  such  other 
circumstances,  which  might  have  affected  the  reports  read  or 
heard,  or  may  be  operating  directly  upon  the  mind  of  the  juror 
and  assisting  the  reports  to  create  a  bias  or  prejudice,  which 
renders  him  not  indifferent."  State  v.  Wilson  {1^7 i),  38  Conn. 
126,  138-140. 

In  New  Jersey,  by  reason  of  the  practice,  it  came  to  be  sup- 
posed that "  the  expression  or  even  the  formation  of  an  opinion 
byajuror,  as  to  the  guilt  of  the  accused,  disqualified  the  juror, 
and  was  ground  of  principal  challenge."  Mofic/ieU  v.  State, 
63  N.  J.  Law,  498.  The  question  was  apparently  for  the 
first  time  judicially  considered  in  State  v.  Speneer  (1S46), 
21  N.  J.  Law,  190.  It  was  there  held  that  it  is  not  a  ground 
of  principal  challenge  that  a  juror  iias  formed  and  expressed  an 
opinion  founded  upcm  either  a  knowledge  of  the  facts,  or  upon 
information  supposed  to  bo  true,  and  that  a  declaration  of 
opinion,  to  disqualify  a  juror,  must  be  such  as  implies  malice 
or  ill  will  against  the  prisoner.  Ilornblower,  C.  J.,  says  (pages 
198,  199):  "It  has  been  supposed  that  an  opinion  of  guilt, 
founded  upon  newspaper  rei)orts  or  other  information,  or  per- 
sonal knowledge,  disqualifies  a  man  from  being  a  juror.  But 
this  is  not  so.  *  *  *  And  I  have  no  hesitation  in  saying 
that  a  bystander  who  witnesses  a  homicide,  or  any  other  breach 
of  the  peace,  is  a  perfectly  competent  juror — as  much  so  as  a 
witness  to  a  bond  or  other  contract  between  private  parties 
would  be  on  a  trial  concerning  such  bond  or  contract.  *  *  * 
A  declaration  of  opinion,  to  disqualify  a  juror,  therefore,  must 


is. 


m 


li   i,,V 


I 


394 


AMERICA^;  CRIMINAL  REPORTS. 


be  such  an  one  as  implies  malice  or  ill  will  against  the  prisoner 
thereby  showing  that  the  person  challenged  does  not  stand 
indifferent  between  the  State  and  him.  This  is  the  uniform 
language  of  the  books,  and  cases  which  are  of  authority  under 
our  Constitution,  as  well  as  of  the  English  courts,  up  to  the 
present  time."  The  question  was  re-examined,  and  the  same 
conclusion  reached,  in  State  v.  Fox  (1856),  25  N.  J.  Law,  566, 
and  Moschell  v.  State  (1888),  aujpra.  In  the  former  case  (25 
N.  J.  Law,  592,  593),  Green,  C.  J,,  after  citing  Cook's  case  and 
other  English  authorities,  says :  "  These  cases,  extending  from 
the  reign  of  Henry  VL  nearly  to  the  present  time — a  period  of 
more  than  four  hundred  years — fully  sustain  the  rule  adopted 
in  State  v.  Spencer.  They  show  that  by  the  rule  of  the  com- 
mon law  the  mere  expression  of  an  opinion  as  to  the  prisoner's 
guilt  or  innocence,  not  arising  from  malice  or  ill  will,  does  not 
disqualify  the  juror,  and  that  such  declaration  is,  in  itself,  no 
evidence  of  the  existence  of  malice  or  ill  will.  There  are 
occasional  dicta  and  cases  to  be  found  in  the  English  books 
indicating  that  the  mere  expression  of  an  opinion  unfavorable 
to  the  prisoner  is,  in  itself,  a  cause  of  challenge.  But  that  such 
is  not  the  recognized  rule  of  law  is  abundantly  evident  from 
the  fact  that  the  question  is  never  suffered  to  be  asked  of  the 
juror  himself,  whether  he  has  expressed  such  opinion,  but  the 
fact  must  be  established  by  other  evidence.  The  ground  of 
this  practice  is  that  the  question  tends  to  bring  scandal  or 
infamy  on  the  juror. 

But  if  the  question  is  merely  designed  to  prove  that  the 
juror  has  expressed  an  opinion  founded  on  his  knowledge  of  the 
case,  or  from  having  read  or  heard  the  evidence,  or  from  com- 
mon rumor,  unconnected  with  any  feeling  of  malice  or  ill  will, 
it  can  by  no  possibility  involve  any  degree  of  infamy,  reproach 
or  moral  turpitude.  The  rule  of  evidence  applicable  to  the 
proof  of  the  cause  of  challenge  affords  the  strongest  evidence 
of  what  the  ground  of  challenge  really  is.  »  *  *  The  very 
terms  of  the  challenge — ^propter  affectum,^  for  affection — 
imply  a  moral  bias,  partiality  or  prejudice.  A  mind  heated  by 
passion,  excited  by  controversy,  or  inflamed  by  party  strife, 
labors  under  a  moral  bias.  Where  this  is  proved  to  exist,  the 
challenge  may  be  sustained.  But  knowledge  is  not  prejudice. 
Wherever  there  is  knowledge,  from  the  very  nature  of  the 
human  mind,  there  must  be  opinion,  and  the  strength  of  the 


m.' 


i 


STATE  V.  SAWTELLE. 


395 


opinion  will  ordinarily  be  proportioned  to  the  extent  of  the 
knowledge.  In  a  community  like  ours,  where  intelligence  of 
every  kind  is  widely  diffused,  rapidly  circulated,  and  eagerly 
souo-ht  after,  to  affirm  that  every  one  who  acquires  informa- 
tion of  a  crime,  and  forms — as  every  man  capable  of  thought 
must  form — some  opinion  in  regard  to  it,  is  laboring  under  a 
moral  bias  which  perverts  the  judgment,  is  to  affirm  what  is 
contrary  to  all  reason  and  experience,  and  in  direct  conflict 
with  the  truth.  The  doctrine,  carried  to  its  legitimate  con- 
clusions, excludes  the  most  intelligent  class  of  citizens,  and 
those  best  qualified  to  serve  as  jurors.  It  practically  disqual- 
ifies every  man  who  reads  and  thinks.  Instead  of  purifying 
it  emasculates  the  jury  box;  and,  where  the  experiment  has 
been  fully  tried,  the  lessons  of  experience  have,  in  this  par- 
ticular, confirmed  the  deductions  of  reason.  There  may  be 
minds  so  constituted  that  every  ray  of  light  necessarily  pro- 
duces obliquity  of  vision.  But  that  is  not  the  normal  condi- 
tion of  the  mind,  and  it  can  not  be  wise  to  predicate  a  legal 
principle  upon  a  mere  anomaly." 

"  I  am  not  prepared  to  say,"  says  Andre^vs,  J.,  in  Balbo  v. 
People,  no  N.  Y.  495,  496,  "that  it  is  contrary  to  human  expe- 
rience, or  the  principles  of  mental  philosophy;  or  that  it  may 
not  frequently  happen,  that  persons  who  have  formed  opin- 
ions of  the  guilt  of  an  accused  person  from  reports  or  state- 
ments, verbal  or  written,  may  not,  as  jurors,  lay  aside  their 
prepossessions,  and  not  only  honestly  and  conscientiously 
endeavor  to  hear  and  decide  the  case  upon  the  evidence,  but 
be  able,  in  fact,  to  divest  themselves  of  the  influence  of  their 
previous  opinions.  It  may,  I  think,  be  safely  aflirmed  that 
the  consciousness  of  such  prepossessions  would  in  many  cases 
induce  on  the  part  of  jurors  a  cautious  consideration  and  a 
more  charitable  construction  of  the  evidence  against  the  pris- 
oner. *  *  *  There  may  be  cases  where  the  opinion  of  the 
juror  has  been  formed  under  circumstances  which,  in  the  judg- 
ment of  all  reasonable  men,  will  prevent  him,  however  con- 
scientious he  may  be,  from  judging  and  deciding  the  case 
irrespective  of  his  prepossessions.  *  *  *  The  circum- 
stances under  which  the  opinion  was  formed,  its  strength,  the 
fact  whether  the  juror  has  any  personal  feeling  against  the 
prisoner,  or  exhibits  any  pride  of  opinion  which  may  lead  hira 
to  give  too  little  or  too  much  weight  to  evidence  in  favor  of 


-•J'fi#\.] 


'Wf 


\ 


iff 


r^m^'M  "■ 


390 


AMERICAN  CRIMINAL  REPORTS. 


or  against  the  accused — these  and  many  other  considcrntions 
will  enter  into  the  judgment  of  the  court,  in  passing  upon  the 
question  of  the  juror's  competency." 

Justice  required  that  the  defendant  shouhl  be  tried  by  |)('r- 
sons  "best  (|ualitied  to  serve  as  jurors."  Gen.  Laws,  c.  L'13, 
§§  1,  4,  10.  Such  persons  generally  form,  and  frequently  ox- 
press,  opinions  of  the  guilt  and  the  deserts  of  the  accused,  in 
a  case  of  this  kind,  before  the  trial.  Upon  newspaper  report, 
they  often  declare,  with  emphasis,  that  he  ought  to  be  hung, 
and  that  they  would  hang  him  if  they  were  on  the  jury. 
There  is  no  occasion  for  surprise  when  those  Avho  have  hcoii 
the  most  violent  in  such  denunciation,  being  impaneled  in  liis 
case,  are  led  by  the  evidence  and  a  sense  of  responsibility  to 
take  a  firm  stand  on  the  other  side.  Siate  v.  Iloicard,  IT  N. 
II.  171,  187,  188.  In  cases  of  startling  crime,  and  others  of 
public  interest  and  notoriety,  all  intelligent  residents  of  tlie 
county,  "best  qualified  to  serve  as  jurors,"  now  stand  in  the 
position  occupied  by  the  residents  of  the  immediate  neighbor- 
hood of  a  like  transaction  400  years  ago.  Few,  if  any,  can  lie 
found  who  have  not  formed  an  opinion  of  more  or  less  strength 
before  the  cause  comes  to  trial.  Information  given  by  iho 
public  press  diifers  in  no  respect  from  oral  hearsay.  Its  weiglit 
and  elfect  upon  the  mind  depend  in  part  upon  the  suppcxsed 
relial)ility  of  the  informer.  However  unreliable  he  may  be 
deemed,  it  may  create  some  impression.  The  diflFerence  be- 
tween an  impression  and  an  opinion — even  a  "fixed  and  set- 
tled "  opinion — is  a  diflFerence  of  degree  only.  However  weak 
it  may  be,  further  consideration  or  further  information  is 
necessary  to  change  it.  When  persons  drawn  for  jury  service 
say  they  have  formed  opinions  which  it  would  l.iko  evi- 
dence to  remove  {Ilopt  v.  Utah,  120  U.  S.  430,  434,  4;i5), 
or  (as  in  this  case)  have  formed  opinions  which  are  so 
strong  that  it  would  require  evidence  to  change  them,  a  poi-- 
tion  of  their  testimon}^  is  superfluous.  In  belief,  as  in  the 
material  world,  changes  do  not  occur  without  reason.  Opin- 
ions are  not  formed  or  abandoned  Avithout  cause.  If  all  the 
residents  of  the  county  (being  otherwise  competent),  whose 
opinion  of  this  case  could  only  be  changed  by  evidence,  were 
excluded  from  the  jury,  the  defendant  could  not  be  tried.  Tlie 
possibility  or  probability  of  obtaining  jurors  who  h.ad  not 
formed  an  opinion  was  properly  considered.    State  v.  Jloicard, 


STATE  V.  SAWTELLE. 


397 


17  X.  II.  171,  196,  197.  The  question  was  not  whotlior  those 
exiiiiiined  as  to  their  judicial  competency  couUl  chun^^o  their 
mintls  without  cause,  but  whether  the}'  could  ana  would  dis- 
rc'iird  the  information  they  had  received  and  the  ojjinions 
they  had  formed  concerning  the  case,  and  render  a  verdict  on 
nothing  but  the  evidence  given  them  during  the  trial.  This 
was  a  question  of  fact,  to  be  determined  at  the  trial  term. 
3fan'h  V.  Railroad  Co.,  19  N".  II.  372,  375,  370;  8taU  v.  Pike, 
49  N.  n.  399,  406,  407;  liowdl  v.  liailroad  Co.,  58  ^.  II.  514. 
Exceptions  overruled.  ^ 

DoK,  C.  J.,  did  not  sit.    The  others  concurred. 

Note.— Com2)e<cncj/  o/j»tror«.— Under  Code  of  MisHissippi,  declaring  that 
any  person,  otherwise  competent,  who  makes  oatli  tliat  he  is  impartial, 
shall  be  competent,  as  a  juror,  though  he  has  formed  an  opinion  as  to  the 
guilt  or  innocence  of  the  accused,  if  he  is  not  prejudiced.  A  juror  wlio 
stated  tliat  he  lived  in  the  immediate  neighborhood  where  the  crime  was 
committed,  had  heard  it  discussed,  and  had  formed  an  opinion  as  to 
dL'fi'iulant's  guilt  or  innocence,  wliich  was  of  sucli  a  flxed  character  that  it 
would  require  evidence  to  remove  it,  but  that  he  tliought  he  could  try  the 
case  fairly  according  to  the  evidence,  was  a  competent  juror.  Dan  Green 
V.  The  State,  73  Miss.  523. 

The  Code  provides  that:  "Any  person,  otherwise  competent,  who  will 
make  oath  that  he  is  impartial  in  the  case,  shall  be  competent  as  a  juror  in 
any  criminal  case,  notwithstanding  the  fact  that  he  has  an  impression  or 
opinion  as  to  the  guilt  or  innocence  of  the  accused,  if  it  appear  to  the  satis- 
faction of  the  court  that  he  has  no  bias  of  feeling  or  prejudice  in  the  case, 
and  no  desire  to  reach  any  result  in  it,  exM'  >t  that  to  which  the  evidence 
may  conduct;  but  any  juror  shall  be  exckulL'd,  if  the  court  be  of  oi)inion 
that  he  can  not  try  the  case  impartially,  and  the  exclusion  shall  not  be 
assignable  for  error." 

After  «|uoting  this  section  of  the  Code  for  the  purpose  of  reconciling  the 
present  suit  with  the  earlier  decisions  of  the  court,  Mr.  C'hief  Justice  Cooper 
Biiys:  "  An  examination  of  the  authorities  cit  }d  in  the  notj  by  Tiiotnpson 
&  Merriam  on  Juries,  to  which  we  have  referred,  will  demonstrate  that 
the  rule  so  frequently  applied  in  the  decisions  in  this  State  was  against  the 
decided  weight  of  authority  elsewhere,  as  was  recognized  by  Judge  Handy 
in  his  dissenting  opinion  in  IVilUainH  v.  State,  33  Miss.  397. 

"  Notwithstanding  the  remarks  of  the  judges  delivering  the  opinions  of 
the  court  in  Logan  v.  State,  .')()  Miss.  201),  and  Alfred  v.  State,  37  Miss.  290, 
we  are  entirely  satisfied  that  it  was  within  the  legislative  power  to  change 
the  rule  as  has  been  done,  and  that  in  the  present  case  the  juror  was 
rightly  held  to  be  competent." 

No  diaqualijication  that  juror  did  not  understand  Engliith. — The  fact 
that  one  of  the  jury  sworn  to  try  the  prisoner  did  not  thoroughly  under- 
stand the  English  language  is  no  ground,  after  trial  and  conviction,  for 
holding  that  there  has  been  a  mistrial,  or  for  granting  a  new  trial.  Regina 
V.  Earl,  10  Manitoba  R.  303. 


: 


(I 


M 


m 


I1|||'|;:/,|f'^'v-i, 


SOS 


AMERICAN  CRIMINAL  REPORTS. 


'*  It  in  too  Itttp  to  chnllonge  a  juror  aftor  he  tins  b«.'en  sworn,  even  if  tlie 
grouiiil  for  chiillense  wiu<  not  known  at  tlio  time.     Id. 

"  iKnorunce  of  the  KnKlitth  InnKUiiKe  wuuhl  not  in  this  Province  (Muni- 
tobii)  be  a  ground  of  challenge  uf  a  juror.     /(/. 

"  At  the  fail  uiwizes  of  180i,  of  the  EiiHtern  Judicial  District,  one  O.  W, 
Earl  was  tried  hoforo  Mr.  Justice  Dubuc  and  a  jury,  and  ponvieted  of  an 
attempt  to  commit  rape.  Wlien  the  prisoner  was  afterward  brouglit  b'.-fore 
the  court  to  receive  sentence,  his  counsel  asked  the  court  to  reserve  a  ease 
for  the  opinion  of  the  court  in  banc  on  the  following  grounds:  (4) 
Because,  as  claimed  by  the  defense,  one  of  the  twelve  jurors  sworn  to  try 
the  prisoner  did  not  understand  the  English  language,  which  was  the  lan- 
guage used  at  the  trial,  or  was  not  sufHciently  skilletl  in  that  lan<;uage  to 
fully  understand  the  evidence,  a<ldn'ssea  of  counsel  and  judge's  charge. 

"  Tlie  prisoner's  counsel  procured  the  aiHdavit  of  the  juror,  and  other  evi- 
dence was  produced  before  the  court,  and  the  judge  found  that  the  juror, 
Paul  Ross,  had  not  such  knowledge  of  the  English  language  as  to  fully  and 
thoroughly  understand  at  the  trial,  the  evidence,  the  addresses  of  coiinsel, 
and  the  juflge's  charge.  The  judge  stated  he  was  satisHed  that  the  defense 
wau  not  aware,  at  the  trial,  of  the  fact  that  the  juror,  Paul  Ross,  was  not 
familiar  with  the  English  language.  The  qiustion  for  the  opinion  of  the 
court  was  the  following :  "  Is  the  fact  that  one  of  the  twelve  jurors, 
Bworn  to  try  the  prisoner,  did  not  thoroughly  understand  the  English  lan- 
guage, a  sufficient  ground  for  holding,  under  the  circumstances,  that  there 
has  been  a  mistrial,  and  that  the  prisoner  should  be  granted  a  new  trial?" 

Mr.  Chief  Justice  Taylor,  after  an  exhaustive  review  of  the  (;aMi's, 
English  an<l  American,  arrived  at  the  conclusion  above  stated,  and  the  two 
associate  justices  concurred  with  liitn  in  separate  opinions.  Of  course, 
the  fact  that  the  juror  spoke  French  and  that  he  was  otherwise  qualitied, 
may  have  hud  an  unconscious  weight  with  the  court. 


Statu  v.  Gkiffin. 
(66  N.  H.  326.) 

Jury  :    Constitutional  law— Trial  by  jury— Statute  requiring  payment  of 

costs  on  appeal. 

General  laws  of  New  Hampshire,  requiring  an  appellant  from  a  sentence  of  a 
justice  of  the  peace  to  pay  certain  fees  is  not  an  infringement  of  the 
constitutional  right  to  a  trial  by  jury,  as  the  amount  of  such  fees  is 
less  than  the  amount  of  those  re(iuired  by  the  provincial  act  of  1718, 
which  was  in  force  at  the  time  of  the  adoption  uf  that  provision  of  the 
Constitution. 

Appeal  from  a  justice  of  the  peace. 

Henry  Griffin  was  sentenced  by  a  justice  of  the  peace  for 


assault  and  battery,  and  appeals. 


Case  discharged. 


STATE  V.  GRIFFIN. 


800 


The  question  is  whether  the  defendant  is  boumi  to  pay  to 
the  justice  the  fees  for  the  appeal  recognizance  antl  copies 
required  l>y  (^«n.  Laws,  c.  258,  §  2,  and  to  tlie  clerk  the  entry 
fee  required  by  Id.  c.  290,  §  4. 

L'a  Colhy  and  L  W.  Barton^  for  defendant. 
8.  L.  Jioivers,  solicitor  for  the  State. 

OAurKNTKB,  J.  The  statutes  require  the  appellant  to  pay 
to  the  justice  his  fees  for  the  api)eal  recognizance  and  copies, 
and  to  the  clerk  of  the  court  the  entry  fee.  Gen.  Laws,  c.  258, 
§§  2,  3;  c.  2S)(>,  §  4.  The  defendant  objects  that  these  provis- 
ions are  an  infringement  of  his  constitutional  right  of  trial 
by  jury. 

All  the  provisions  of  the  Constitution  affocting  prosecutions 
for  crime  have  remained  in  force,  without  alteration,  since  it 
took  effect,  in  June,  1784.  The  journal  of  the  constitutional 
convention  of  1791  was  first  published  in  1877.  Prior  to  that 
time,  and  until  attention  was  called  to  that  publication,  it  was 
generally,  if  not  universally,  understood  that  the  whole  of  the 
i)resent  Constitution  (excepting  the  amendments  of  1851, 1877, 
and  1889)  was  submitted  to  the  people,  and  adopted  by  them 
in  1792.  Pierce  v.  State,  13  N.  IL  530,  542;  Jiaker  v.  llolifer- 
Jim,  26  N.  H.  110,  114;  liich  v.  FlnmlerH,  39  N.  IL  375,  376; 
Copp  V.  Henniker,  55  N.  IL  179, 191;  Perkinnv.  Scott,  57  N.  II. 
55,  57,  78;  Kitnj  v.  Hopkins,  N.  II.  334,  346;  Commissioners 
Kep.  1878,  p.  29,  note;  Gen.  Laws,  p.  40,  note.  Such  was  not 
the  fact.  State  V.  Satmders,  66  N.  H.  39,  72.  The  convention 
first  proposed  and  submitted  to  the  people  seventy-two  amend- 
ments. They  were  separately  voted  upon.  Forty-six  were 
adopted,  and  twenty-seven  were  rejected.  The  only  one  affect- 
ing trial  by  jury  related  to  civil  causes,  and  was  rejected  The 
action  of  the  people  rendered  necessary  further  amendments 
regarding  the  senate,  executive  power,  and  council;  and  articles 
25  to  06,  inclusive,  of  the  Constitution,  as  it  stood  until  1851, 
were  sul  nitted  to  the  people  in  a  body  as  a  single  amend- 
ment, and  were  adopted.  10  Prov.  &  State  Papers,  pp.  11 1-168. 

"  We  regard  it  as  a  well-settled  and  unquestioned  rule  of 
construction  that  the  language  used  by  the  legislature  in  the 
statutes  enacted  by  them,  and  that  used  by  the  people  in  the 
great  paramount  law  which  controls  the  legislature  as  well  as 


■.  \ , 


fc«;  -1    r9 


■T^W 


K^ 


'IK 


400 


AMERICAN  CRIMINAL  REPORTS. 


.] 


=1 


the  people,  is  to  be  always  understood  and  explained  in  tliat 
sense  in  wliich  it  was  used  at  the  time  'when  the  Constitution 
and  the  laws  were  ndoi)tod."  Opinion  of  the  justices,  41  X. 
11.  5.51,  •i'A  N.  II.  <)35.  "  The  trial  by  jury  secured  to  the  sub- 
ject by  the  Constitution  is  atrial  according  to  the  course  of  tlie 
common  law,  and  the  same,  in  substance,  as  that  which  was 
in  use  when  the  Constitution  was  framed."  I^(ff</  Khujstnn  v. 
Towle,  48  J^.  II.  57,  64.  "The  right  is  the  historical  right ' 
enjoyed  rt  the  time  it  was  guarantied  by  the  Constitution. 
*  *  *  The  exercise  of  the  right  may  be  reguhited  by  lojr- 
islation.  Without  some  legislative  regulation  of  it,  or  ])rovis- 
ion  for  it,  it  can  not  be  enjoyed  at  all.  The  Constitution 
merely  guarantees  the  right,  and  leaves  to  the  legislature  tiie 
duty  of  providing  the  means  and  methods  by  which  it  is  to  be 
enjoyed."  Coj)p  v.  IlennU'er,  55  K  II.  179,  H»5;  198.  It  may, 
in  some  cases,  be  difficult  to  draw  the  line  between  legislative 
acts  which  merely  regulate  the  exercise  of  a  constitutional 
right,  and  acts  which,  under  the  pretence  of  regulating,  mote- 
rially  impair,  the  right.  Davis  v.  School  Diat.^  44  Ts".  II.  308, 
404;  Attorney- Gencml  v.  CoJhurn,  fi2  N.  II.  70,73,  74;  Cnpp 
V.  Ilenmkcr,  55  N.  H.  170,  190-198,  201,  202;  Rich  v.  Flcnxhrs, 
39  N.  II.  304  Green  v.  Diddle,  8  Wheat.  1,  75,  70;  Bron-mi 
V.  Jiin.zte,  1  How.  311,  316-318.  No  such  didiculty  arises  here. 
The  onh'  objection  to  the  statutes  is  that  they  make  the 
expense  to  which  the  defendant  is  subjected  in  order  to  obtain 
a  trial  by  jury,  greater  than  it  was  when  the  Constitution  was 
adopted.  If  the  objection  were  well  founrled  in  fact,  it  might 
not,  perhaps,  necessarily  follow  that  the  substance  of  the  right 
to  jury  trial,  as  it  existed  in  such  cases  in  1784,  is  thereb}'  ma- 
terially impaired.  Davis  v.  School  Dist.^sttpra;  Beers  v.  Ihim 
4  Conn.  535,  539;  Colt  v.  Fees,  12  Conn.  243.  252,  253;  Curt!.'* 
V.  Gill,  34  Conn.  49,  54;  Iti  re  Marron,  60  Vt.  199.  But  in 
1784  the  person  appealing  from  the  sentence  of  a  justice  of  tlie 
peace  was  compelled  to  pay  in  fees  a  much  greater  sum  tli;  ,\ 
is  required  by  the  present  statutes.  The  provincial  act  of  171 S 
provided  "  that  it  shall  be  lawful  for  any  person  sentenced  for 
any  criminal  offense  by  one  or  more  justices  of  the  peace  out: 
of  sessions  to  appeal  therefrom  unto  the  next  court  of  general', 
quarter  sessions  of  the  peace  to  be  held  within  this  i)rovince; 
every  such  appellant  recognizing  with  sureties  in  a  reasonable 
sum,  not  exceeding  five  pounds,  for  his  appearance  at  the  court 


(ers. 


rig'lit 


STATE  V.  GRIFFIN. 


401 


appealed  to,  and  to  prosecute  his  ap^ieal  there  with  effect,  and 
to  ])erform  and  abide  tlie  order  or  sentence  of  the  said  court 
thereon  which  is  to  be  final,  and  in  the  meantime  to  be  of  good 
behavior.  And  every  such  appellant  shall  attend  the  same 
rules  and  methods  for  bringing  forward  his  appeal  at  the  said 
court  of  general  sessions  of  the  peace,  as  is  provided  in  case  of 
appeal  from  a  justice  of  the  peace  in  civil  cases  to  the  inferior 
court,  and  shall  pay  the  like  fee  for  entering  of  his  appeal  as  for 
the  entering  of  a  civil  action,  and  the  like  fee  to  the  jurors." 
Prov.  Laws  (Ed.  1726),  p.  70;  Id.  (Ed.  1761),  pp.  1,  2;  Id.  (Ed. 
1771),  pp.  69,  70.  In  effect,  appellants  were  required  to  take 
the  same  steps,  and  pay  the  same  fees,  in  criminal  as  in  civil 
cases.  Cojyp  v.  Ilenniker,  55  N.  II.  197.  In  civil  cases,  appel- 
lants were  required  to  produce  in  the  court  appealed  to  "  at- 
tested copies  of  the  writ,  judgment  and  all  the  evidence  filed." 
Prov.  Laws  (Ed.  1761),  pp.  3,  4.  The  act  of  1718  was  repealed 
September  15,  1792,  and  the  act  of  February  9,  1791  (Laws, 
Ed.  1797,  p.  53),  which  merely  required  the  appellant  to  recog- 
nize with  sufficient  sureties  for  his  appearance  at  the  court 
appealed  to,  and  to  prosecute  his  appeal  there  with  effect,  abide 
the  order  of  court  thereon,  and  in  the  meantime  to  be  of  good 
behavior,  went  into  effect  at  the  same  time.  Laws  (Ed.  1805), 
pp.  398-101,  403.  By  the  fee  bill  in  force  in  1784,  the  justice's 
fees  for  the  appeal  and  recognizance  were  four  shillings;  for 
the  copies,  one  shilling  a  page  of  224  words;  and  for  his  cer- 
tificate thereon,  two  shillings;  the  entry  fee  in  the  court  of 
quarter  sessions  was  ten  shillings  (the  same  as  the  entry  fee  of 
a  civil  action  in  the  inferior  court);  and  the  juror's  fees  were 
six  shillings  and  sixpence.  Prov.  Laws  (Ed.  1771),  pp.  83,  85, 
86,  167.  If  the  copies  comprised  ten  pages,  the  appellant,  in 
order  to  secure  a  jury  trial,  was  compelled  to  pay  32  shillings 
and  sixpence,  or  $5.42.  Under  our  present  statutes  he  is 
required  to  pay  the  justice,  for  the  appeal  and  three  recogni- 
za'  es,  68  cents;  for  the  copies,  ten  pages,  $1.70,  and  certificate 
thereon,  15  cents;  and  the  clerk  for  the  entry  fee,  §1.20;  in  all 
$3.73.  Gen.  Laws,  c.  290,  §§  2-4;  Fowler  v.  Tuttle,  24  N.  H. 
9,  20.  If  the  changed  value  of  money  be  considered  {Copp  v. 
Ilenniker,  55  N.  H.  196),  the  burden  now  imposed  on  the  right 
of  trial  by  jury  in  such  cases  is  not  half  so  large  as  it  was  at 
the  time  of  the  framing  and  adoption  of  the  Constitution.  Case 
discharged. 


"rf^ 


'1 


402 


AMERICAN  CRIMINAL  REPORTS. 


Doe,  C.  J.,  did  not  sit.    The  others  concurred. 


a  a 


"SOTK.— Trial  by  jury— Violation  of  ordinance. — Under  16  St.  at  Large 
p.  467,  §  2,  conferring  on  the  recorder  of  the  city  of  Charleston  all  the 
authority  of  a  trial  justice  in  criminal  matters,  and  Code  Cr.  Proc.,  §  20, 
providing  that  every  person  charged  with  an  offense  before  a  trial  justice 
shall  be  entitled,  on  demand,  to  a  trial  by  jmy,  a  person  charged  before  the 
recorder  of  Charleston  with  violation  of  an  ordinance  is  entitled,  on  demand 
to  a  jury  trial.    State  v.  Larkina,  44  S.  C.  368. 

After  reviewing  the  history  of  the  police  court  of  the  city  of  Charleston, 
Mr.  Justice  Gray  says  :  One  of  the  rights  of  a  prisoner  charged  with  the 
violation  of  an  ordinance,  when  tried  before  a  person  clothed  with  the 
powers,  authority,  and  jurisdiction  of  a  trial  justice,  is  to  have  a  jury  to 
pass  upon  his  innocence  or  his  guilt.  Toton  of  Lexington  v.  Wise,  24  S.  C. 
163;  Town  Council  v.  Ohlandt,  Id.  158;  State  v.  Williams,  40  S.  C.  373. 
Section  20,  Code  Cr.  Proc.,  provides  that  every  person  arrested  and  brought 
before  a  trial  justice  charged  with  an  offense  within  his  jurisdiction  shall 
be  entitled,  on  demand,  to  a  trial  by  jury.  Although  the  question  presented 
in  this  case  was  not  involved  in  the  case  of  City  Council  v.  Brown,  supra, 
the  principles  therein  announced  are  conclusive  of  this  case.  After  a  care- 
ful consideration  of  that  case,  this  court  sees  no  reason  to  change  its  views 
therein  announced.  The  authorities  are  not  entirely  uniform  on  the  sub. 
ject,  but  I  should  say  that  in  all  jurisdictions  which  regard  the  violation  of 
a  city  ordinance  as  a  criminal  offense,  the  accused  ought  to  be  entitled  to  a 
trial  by  jury  should  he  demand  it. 


The  Queen  v.  Riley. 

(Queen's  Bench  Division,  1896,  Vol.  1,  p.  309.) 

Forqeby:    Obtaining  money  by  forged  instrument— Forged  telegram. 

The  prisoner  was  indicted  under  s.  38  of  the  Forgery  Act,  1861,  for  ob- 
taining certain  money  by  means  "of  a  certain  forged  instrument,  to 
wit,  a  forged  telegram."  It  appeared  that  the  prisoner,  who  was  a 
clerk  iu  a  post  office,  sent  to  a  bookmaker  a  telegram  offering  a  bet  on 
a  certain  horse  for  a  certain  race.  The  telegram  purported  to  have 
been  handed  in  prior  to  the  running  of  the  race,  and  the  bookmaker 
accepted  the  bet  and  ultimately  paid  the  amount  won  on  that  under- 
standing. In  reality  the  telegram  was  dispatched  by  the  prisoner  after 
he  had  received  the  news  that  the  race  had  lieen  won  by  the  horse  in 
question.  Held,  by  Hawkins,  Mathew  and  Wills,  JJ.  (Lord  Russell  of 
Killowen,  C.  J.,  and  Vaughan  Williams,  J.,  doubting),  that  the  tele- 
gram was  a  forged  instrument  within  the  meaning  of  s.  38,  and  that 
the  indictment  was  good. 

Case  reserved  for  the  consideration  of  the  court  by  Ken- 
nedy, J. 


THE  QUEEN  v.  RILEY. 


403 


The  prisoner  was  indicted  under  s.  38  of  24  and  25,  "Vict.  c. 
98  for  that  he  "  feloniously  did  cause  and  procure  to  be  deliv- 
ered and  paid  to  one  Henry  Dorber  certain  money,  to  wit,  the 
sum  of  nine  pounds,  the  properties  and  moneys  of  George 
Crompton  and  Samuel  Radcliffe,  under,  upon  and  by  virtue  of 
a  certain  forged  instrument,  to  wit,  a  forged  telegram;  that  is 
to  say,  a  forged  message  and  communication  purporting  to 
have  been  delivered  at  a  certain  post  office,  to  wit,  at  Royal 
Exchange,  Manchester,  for  transmission  by  telegraph,  and  to 
have  been  transmitted  by  telegraph  to  a  certain  other  post 
office,  to  wit,  the  head  post  office  at  Manchester,  with  intent 
thereby  then  to  defraud,  he  the  said  Henry  Riley  then  well 
knowing  the  same  forged  instrument  to  be  forged,  against  the 
form,"  etc. 

A  second  count  charged  him  in  similar  terms  with  endeav- 
oring to  commit  the  same  offence. 

It  appeared  that  the  prisoner  was  a  clerk  in  the  telegiaph 
department  of  the  head  post  office  of  Manchester.  He  had 
obtained  from  Dorber  permission  to  make  bets  in  his  name 
with  Messrs.  Crompton  &  Radcliife,  who  were  bookmasers, 
and  with  whom  Dorber  was  in  the  habit  of  doing  business. 
On  June  27,  1895,  the  race  known  as  the  Newcastle  Handicap 
was  to  be  run  at  2:45  p.  m.,  and  on  that  day  the  prisoner  sent 
to  Crompton  &  Radcliffe,  in  the  name  of  Dorber,  a  telegram 
in  these  words — "  Three  pounds.  Lord  of  Dale."  The  tele- 
gram purported  to  have  been  handed  in  at  the  Royal  Exchange 
office  at  Manchester  at  2:40  p.  m.,  and  to  have  been  received  at 
the  head  office  at  2:51  p.  m.,  from  which  office  it  was  trans- 
mitted to  Crompton  &  Radcliffe.  In  reality  the  telegram  was 
not  handed  in  at  the  Royal  Exchange  office  at  all;  but  it  was 
dispatched  b\'  the  prisoner  from  the  head  office  after  the  news 
had  arrived  there  that  the  race  had  been  won  by  Lord  of  Dale. 
Messrs.  Crompton  &  Radcliffe,  acting  on  their  usual  practice, 
and  believinff  that  the  bet  was  offered  before  the  race  was 
run,  accepted  it  at  the  current  odds  of  3  to  1  against  Lord  of 
Dale,  and  in  the  result  credited  Dorber  with  9^.,  which  in 
due  course  would  be  received  by  the  prisoner.  No  suggestion 
of  fraud  was  made  against  Dorber.  The  prisoner  pleaded 
guilty.  The  questions  on  which  the  opinion  of  the  court  was 
asked  by  the  learned  judge  were: 

(1.)    Whether  the  telegram  was  a  forged  instrument  within 


i 


i 

t  ! 


:  m: 


!t:::;  ' 


■:i      f; 


40* 


AMERICAN  CRIMINAL  REPORTS. 


the  meaning  of  s.  38,  and  whether  the  prisoner  could  be  con- 
victed on  the  indictment. 

(2.)  "Whether  the  prisoner  by  pleading  guilty  must  be  taken 
as  having  admitted  the  facts  appearing  on  the  depositions. 

The  Solicitor-General  {Sir  li.  B.  Fiulay,  Q.  C),  JUcCall 
Q.  C,  and  Gasserley^  for  the  Crown. 

F.  H.  Mellor,  for  the  prisoner. 
Cur.  adv.  vult. 

February  3.  Hawkins,  J.,  read  the  following  judgment: 
The  main  question  for  us  to  decide  is  whether  the  tele'Ttim 
upon  which  this  indictment  was  preferred  is  a  forged  instiu- 
ment  according  to  the  true  interpretation  of  s.  38  of  2i  aiul  25 
Vict.  c.  98. 

Messrs.  Crompton  &  Kadcliffe  are  bookmakers  at  Man- 
chester. Their  practice  is  to  accept  bets  on  horse  races  olFered 
them  by  telegram  by  persons  desirious  of  backing  horses,  ])ro- 
vided  that  on  the  face  of  the  telegram  it  appears  to  have  been 
handed  in  by  the  sender  at  a  time  earlier  than  that  fixed  for 
the  running  of  the  race  upon  which  the  bet  is  offered.  On 
June  27  last  a  horse  named  Lord  of  Dale  was  about  to  run  in 
the  Newcastle  Handicap,  and  the  time  fixed  for  the  running 
of  that  race  was  2:45  p.  m.  The  prisoner  on  the  afternoon  of 
that  day  sent  to  Crompton  &  Radcliffe,  in  the  name  of  a 
person  named  Dorber,  a  customer  of  theirs,  and  who  had 
authorized  the  prisoner  to  use  his  name,  a  telegram  wliich  on 
the  face  of  it  purported  to  have  been  handed  in  at  the  Koyal 
Exchange  branch  post  office  in  Manchester  at  2:40  v.  m.,  and  to 
have  been  received  at  the  head  office  at  Manchester  at  2:51 
p.  M.,  whence  it  was  sent  out  to  Crompton  &  Kadcliffe.  Tlie 
body  of  it  was  in  these  words — "  Three  pounds.  Lord  of  Dale.'' 
The  starting  price  odds  against  Lord  of  Dale  at  the  time  when 
the  telegram  purported  to  have  been  handed  in  were  3  to  1. 
This  telegram  was  received  by  Crompton  &  Radcliffe  at  3:15 
p.  M.,  and  the  bet  was  accepted  by  them  in  the  ordinary  course. 
Lord  of  Dale  won  the  race,  and  upon  the  faith  that  the  tele- 
gram had  been  handed  in  as  it  purported  to  have  been, 
Crompton  «fe  Radcliffe  in  due  course  paid  Dorber,  or  allowed 
him  in  account,  the  amount  won  by  him,  nameh%  the  sum  of 
92.    The  telegram  was  in  fact  not  handed  in  at  or  sent  from 


THE  QUEEN  v.  RILEY. 


405 


the  Royal  Exchange  office  at  all,  but  was  dispatched  by  the 
prisoner  from  the  head  office  in  the  form  in  which  it  reached 
Crompton  &  Radcliffe  after  the  race  had  been  run  and  won. 
It  is  fair  to  Dorber  to  say  that  it  was  not  suggested  that  he 
was  a  party  to  that  fraud. 

By  the  24  and  25  Vict.  c.  9S,  s.  38,  "  Whosoever  with  intent 
to  defraud  shall  demand,  receive,  or  obtain,  or  cause  or  pro- 
cure to  be  delivered  or  paid  to  any  person,  or  endeavour  to 
receive  or  obtain,  or  to  cause  or  procure  to  be  delivered  or  paid 
to  any  person,  any  chattel,  money,  security  for  money,  or  other 
property  whatsoever  under,  upon,  or  by  virtue  of  any  forged 
or  altered  instrument  whatsoever,  knowing  the  same  to  be 
forged  or  altered,"  shall  be  guilty  of  felony. 

The  prisoner  was  indicted  under  that  section  for  procuring, 
with  intent  to  defraud,  the  payment  to  Dorber,  "  by  virtue  of 
a  forged  instrument,  to  wit,  a  forged  telegram,  that  is  to  say, 
a  forged  message  and  communication  purporting  to  have  been 
delivered  at  a  certain  postoffice,  to  wit,  at  Royal  Exchange, 
Manchester,  for  transmission  by  telegraph,  and  to  have  been 
transmitted  by  telegraph  to  a  certain  otiier  postoffice,  to  wit, 
the  head  postoffice  at  Manchester  aforesaid,  with  intent  then  to 
defraud,  he,  the  said  Henry  Riley,  then  well  knowing  the  same 
forged  instrument  to  be  forged  against  the  form  of  the  stat- 
ute, etc.,  and  against  the  peace,"  etc.  There  was  a  second 
count  varying  the  charge,  to  which  I  need  not  refer. 

To  this  indictment  the  prisoner  pleaded  guilty;  but  the 
learned  judge  (Kennedy  J,),  before  whom  the  case  came  on  to 
be  tried,  entertaining  a  doubt  whether  the  telegram  was  an 
instrument  within  the  meaning  of  s.  38,  reserved  that  question 
for  the  consideration  of  the  Court  for  Crown  Cases  Reserved; 
and  also  desired  the  opinion  of  the  Court  as  to  the  sufficiency 
of  the  indictment. 

As  to  the  indictment  assuming  the  telegram  to  be  an  instru- 
ment within  the  meaning  of  the  38th  section,  I  think  the 
indictment  sufficiently  describes  it.  I  consider  that  it  would, 
after  a  plea  of  guilty,  have  been  sufficient,  under  s.  42  of  the 
Act,  even  had  the  indictment  been  for  forging  the  instrument. 
A  fortiori,  it  is  so  upon  this  indictment,  which  is  not  for 
forgery,  but  for  procuring  money  to  be  paid  by  virtue  of  a 
forged  instrument.  I  think  it  amply  sufficient.  See  Taylor  v. 
Beg.  1  Q.  B.  25. 


T 


.'     ■  t-!l'\: 


,''V 

r„ 

1  ; 

406 


AMERICAN  CRIMINAL  REPORTS. 


: 


I  proceed  to  discuss  the  questions  reserved  for  our  consider- 
ation. Whether  the  telegram  described  in  the  case  consti- 
tutes a  forged  instrument  in  law;  and  whether  it  is  such  an 
instrument  as  is  contemplated  by  section  38. 

My  answer  to  both  these  questions  is  in  the  affirmative. 

In  4  Blackstone's  Commentaries,  247,  forgery  at  common 
law  is  defined  as  "  the  fraudulent  making  or  alteration  of  a 
writing  to  the  prejudice  of  another  man's  right."  I  seek  for 
.>  other  definition  for  the  purposes  of  the  present  discussion. 
"h.  ,,  a  postal  telegram  is  a  writing  is  to  my  mind  clear.  It 
originates  in  a  written  message  addressed  and  signed  by  the 
sender  and  delivered  by  him  into  the  post  office  of  despatch 
to:  the  ^  X  ^Jress  purpose  that  it  shall,  in  the  very  words  in 
which  it  irf  pLuned,  be  transmitted  by  means  of  an  electric 
wire  to  another  post  office,  which  I  will  call  the  arrival  office, 
and  that  it  shall  there  again  on  its  arrival  be  committed  to 
Avriting  verbatim  et  literatim,  and  that  such  last  mentioned 
writing  shall  be  handed  to  the  person  to  whom  it  is  addressed. 
The  writing  delivered  in  at  the  office  of  despatch  is  the 
authority  of  the  postmaster  to  transmit  the  message,  and 
of  the  postmaster  at  the  arrival  office  to  commit  it  to 
writing  and  to  deliver  it  to  the  addressee  as  the  sender's 
written  message  to  him.  This  message  sent  out  from  the 
arrival  office,  is,  in  my  opinion,  as  binding  upon  the  sender  as 
though  he  had  written  it  with  his  own  hand.  If  I  am  riirht 
in  this,  it  follows,  that  an  offer  by  telegram  accepted  by  tele- 
gram, might  well  create  a  contract  sufficient  to  satisfy  the 
Statute  of  Frauds  between  the  sender  and  the  addressee,  and 
a  verbal  offer  accepted  by  telegram  might  create  an  ordinary 
contract.  For  this  there  is  the  authority  of  the  Court  of 
Common  Pleas  so  long  ago  as  1870.  See  Godwin  v.  Francis, 
L.  R.  5  C.  P.  295.  Assuming  the  telegram  to  be  such  a  writing 
as  I  have  stated,  a  bare  reading  of  the  contents  of  it,  coupled 
■with  the  admission  of  its  falsity  and  of  the  purpose  for  which  it 
was  made,  are  overwhelming  to  establish  that  it  was  fraudu- 
lently made  to  the  prejudice  of  another  man's  riglit,  and  thus  a 
forgery  at  common  law.  For  this  I  need  only  cite  the  judg- 
ment of  Blackburn,  J.,  in  Reg.  v.  Eitmn,  L.  R.  I.  C.  C.  200,  at 
page  204:  "  AVhen  an  instrument  professes  to  be  executed  at  a 
date  different  from  that  at  which  it  really  was  executed,  and  the 
false  date  is  material  to  the  operation  of  the  deed,  if  the  false 


THE  QUEEN  v.  RILEY. 


407 


date  is  inserted  knowingly  and  with  a  fraudulent  intent,  it  is 
a  forgery  at  common  law." 

In  this  case,  unless  the  telegram  was  dated  and  despatched 
before  the  race  was  run  it  would  have  been  inoperative.  The 
time  of  desi)atch  was  therefore  material;  falsely  to  write  the 
teleo-ram  so  as  to  make  it  appear  that  it  was  sent  in  for  des- 
patch before  the  race  was  run,  when  it  was  not  sent  in  till 
afterwards,  was  to  make  it  appear  on  the  face  of  it  to  be  that 
which  it  was  not. 

The  more  vexed  questions,  however,  are  whether  the  writ- 
ino-  can  be  treated  as  an  instrument,  and  if  so,  whether  it  is 
such  an  instrument  as  is  contemplated  by  the  38th  section, 
the  contention  for  the  prisoner  being  that  it  can  not  properly 
be  treated  as  an  instrument  at  all,  and  that,  even  if  it  can, 
that  the  38th  section  has  reference  only  to  such  forged  legal 
or  commercial  instruments  as  are  mentioned,  and  the  forgery 
of  which  is  matle  felony  in  the  earlier  sections  of  the  statute. 
After  much  consideration,  I  have  formed  an  opinion  adverse 
to  the  prisoner  on  both  these  points. 

Now,  can  this  telegram  properly  be  called  an  instrument  ? 
I  am  not  aware  of  any  authority  for  saying  that  in  law  the 
terra  "  instrument "  has  ever  been  confined  to  any  definite 
class  of  legal  documents.  In  the  absence  of  such  authority,  I 
can  not  but  think  the  term  ought  to  be  interpreted  according 
to  its  generally  understood  and  ordinary  meaning,  as  stated 
in  the  dictionaries  of  Dr.  Johnson  and  of  "Webster.  Both 
these  give  definitions :  first,  how  the  word  is  to  be  treated  when 
applied  to  a  chattel,  namely, as  "a  tool  used  for  an  work  or 
purpose."  When  applied  to  a  writing.  Dr.  Johnson  defines  it 
as  "a  writing — a  writing  containing  any  contract  or  order." 
"Webster's  definition  as  "  a  writing  expressive  of  some  act,  coti- 
tract,  process,  or  proceeding."  "When  used  generally,  Dr. 
Johnson  speaks  of  it  as  "  that  by  means  whereof  something  is 
done."  "Webster,  as  "  one  who,  or  that  which,  is  made  a  means 
or  caused  to  serve  a  purpose."  These  definitions  cover  an 
indefinite  variety  of  writings,  whether  penned  for  the  purpose 
of  creating  binding  obligations,  or  as  records  of  business  or 
other  transactions. 

Every  one  of  the  documents  mentioned  in  the  statute  is  un- 
questionably an  instrument,  and  intended  to  be  so  treated. 
Throughout  the  statute  it  is  evident  the  Legislature  attached 


408 


AMERICAN  CRIMINAL  REPORTS. 


no  rigid  definito  meaning  to  the  word,  for  it  is  used  in  a  vari- 
ety of  senses,  all  falling  within  one  or  other  of  the  deiinitions 
of  Dr.  Johnson  and  Webster,  to  which  I  have  referred.  Thus 
in  s.  1  of  Act,  the  word  is  used  to  signify  a  document  having 
thereon  affixed  a  counterfeit  of  the  Great  Seal.  In  ss.  9-U 
the  word  is  used  to  denote  the  tool  or  implement  to  be  used 
for  making  a  peculiar  kind  of  paper.  In  ss.  16,  17,  IS  the 
word  is  used  to  indicate  tools  for  the  manufacture  of  ]iaper, 
plates,  or  implements  to  be  used  for  carrying  out  forgeries. 
In  s.  21  the  expression  is  "  testamentary  instrument."  In  s.  29 
the  word  is  applied  to  written  or  printed  documents  made  evi- 
dence by  Act  of  Parliament.  In  s.  33  it  is  applied  to  Avritings 
purporting  to  be  made  by  the  Accountant-General  of  the  Court 
of  Chancery,  etc.     In  s.  31:  it  refers  to  recognizances. 

To  most  of  the  forged  documents  mentioned  in  the  sections 
before  s.  38  and  declared  to  be  felonies,  the  term  "  instrument" 
is  not  applied  at  all,  although  no  doubt  could  be  suggested  that 
they  are  intended  to  be  treated  as  instruments  within  the 
meaning  of  the  Act. 

It  will  not,  of  course,  be  denied  that  there  are  very  many 
instruments  of  an  important  character,  commercial  and  other- 
wise, the  forgery  of  which  constitutes  only  offenses  at  common 
law.  I  do  not,  for  instance,  find  that  the  forgery  of  an  ordi- 
nary written  contract  (not  under  seal  or  specially  named  in 
the  statute)  is  a  felony.  So  also  a  certificate  of  ordination, 
though  the  forgery  of  it  is  a  mere  common  law  offense,  was 
nevertheless  spoken  of  as  an  instrument  by  Blackburn,  J,,  in 
Ite(j.  V.  Morton,  L.  R.  2  C.  C.  22.  I  call  attention  to  these  un- 
deniable facts  for  the  purpose  of  showing  that  there  are  many 
written  documents  of  an  important  character  beyond  those 
mentioned  in  s.  38,  to  which  the  words  "  any  instrument  what- 
soever" used  in  that  section  apply  in  addition  to  those  docu- 
ments mentioned  in  the  statute. 

In  my  view  of  the  case,  the  telegram  in  question  is  an  instru- 
ment of  contract;  it  is  the  instrument  which  completed  the 
wager  offered  by  Crompton  &  Radcliffe  to  those  who  were 
able  and  disposed  to  accept  it  (see  Carlill  v.  Carbolic  Smohe 
Ball  Co.,  Limited,  2  Q.  B.  484  [1892];  1  Q.  B.  256  [1893],  and 
the  cases  there  cited),  and  thenceforth  an  obligation  was 
imposed  upon  each  party  in  honour  to  fulfil  it  according  to  the 
result  of  the  race.    I  say  in  honour  becausa,  though  it  was 


1g 


THE  QUEEN  V.  RILEY. 


409 


clearly  not  an  illegal  contract,  it  could  not  be  enforced  by  any- 
legal  process.  In  virtue  of  it,  and  upon  the  assumption  that 
the  telegram  was  what  it  purported  to  be,  Messrs.  Crompton  & 
Radcliffo  i)aid  the  9^. 

Assuming  the  document  to  be  an  "instrument,"  I  come  to 
the  only  remaining  question,  whether  it  is  such  within  the 
meaning  of  s.  38  of  the  Statute.  Wh\'  should  it  not  be  so? 
It  is  contended  that  the  section  has  reference  only  to  such 
instruments  as  are  mentioned  in  the  earlier  sections  of  the 
statute,  and  that  s.  38  a]>plies  only  to  those  forged  instruments 
which  are  punishable  as  felonies. 

Such  a  construction  is,  I  think,  erroneous.  There  is  no 
definition  of  the  word  "instrument"  in  the  statute  to  fetter  us 
in  giving  to  it  the  ordinary  and  general  interpretation.  It 
was  clearlv  the  intention  of  the  Lemslature,  bv  s.  38,  to  create 
a  new  offence. 

If  it  had  been  the  intention  of  the  Legislature  to  limit  the 
operation  of  the  section  to  felonious  forgeries,  how  easy  it 
would  have  been  to  use  appropriate  language  for  that  purpose. 

So  far  from  doing  this  the  Legislature,  having  used  the  term 
"instrument"  in  a  varietv  of  senses  all  falling  within  one  or 
another  of  the  definitions  I  have  above  referred  to,  proceeds, 
in  s.  38,  to  use  language  which,  read  in  its  ordinary  sense, 
comprises  every  description  of  written  instrument.  What 
simpler,  stronger  or  more  comprehensive  words  could  they 
have  employed  than  "  any  forged  or  altered  instrument  what- 
soever" to  convey  an  intention  that  every  forged  instrument 
should  be  covered  by  it,  whether  the  forgery  was  a  felony  by 
statute  or  a  misdemeanor  at  common  law?  I  think  the  Legis- 
lature intended  exactly  what  it  has  said,  and  I  feel  strength- 
ened in  this  view  by  the  declaration  of  Mr.  Greaves,  Q.  C. 
(who  had  much  to  do  in  the  framing  of  the  Criminal  Consoli- 
dation Acts,  of  which  this  is  one),  in  that  chapter  of  his  work 
relating  to  these  statutes.  (The  Criminal  Law  Consolidation 
and  Amendment  Acts  of  the  24  and  25  Vict.,  with  notes  and 
observations  by  C.  S.  Greaves,  London,  1801),  which  treats  of 
the  construction  of  them,  wherein  he  says :  "  The  word  '  who- 
soever '  is  used  throughout  these  acts  in  the  widest  sense,  so  as 
to  include  every  person  capable  of  becoming  a  criminal." 
There  is  no  reason  why  the  word  "  whatsoever"  should  not  be 
interpreted  in  a  similar  spirit. 


f 

11 

■  ■ill  I 

1!.  1 

i  ii 

III 

'i  ■■■■ 

fi 

, 

( 

' 

Ii:s  "t  -T  iy- 


^    n 


410 


AMERICAN  CRIMINAL  REPORTS. 


t'         'IS 

ti  ml 


As  to  the  word  "  any"  ho  says :  "  It  is  also  usotl  in  lil;o 
manner  so  as  to  include  ever}'  person  or  thing,  or,  at  least, 
every  person  or  tiling  other  tlian  the  person  or  thing  pre- 
viously mentioned."  Speaking  of  the  expression  "  any  other," 
he  illustrates  its  intended  interpretation  by  saying  that  tlio 
words  "  gunpowder  or  any  other  explosive  substance"  in  s. 
19  of  the  Offences  Against  the  Person  Act  are  intended'  to 
include  every  explosive  substance.  He  points  out,  also  in  Iho 
latter  part  of  that  chapter,  that  (for  reasons  he  has  given)  uny' 
argument  as  to  a  difference  in  the  intention  of  the  Legislature 
which  may  be  drawn  from  a  difference  in  the  terms  of  one 
clause  from  those  in  another  will  be  of  no  weif^ht  in  the  con- 
struction of  such  clauses.  Moreover,  in  a  note  to  the  sections 
now  under  consideration,  he  says:  "This  clause  is  intended 
to  embrace  every  case  of  demanding,  etc.,  any. property  wliat- 
soever  upon  forged  instruments."  I  think  no  argument 
against  the  interpretation  I  have  put  upon  s.  38  can  be  derived 
from  s.  39,  immediately  following,  for  it  expressly  limits  the 
operation  of  that  section  to  statutory  forgeries  by  enacting 
tliat  whether  such  forgeries  are  created  by  that  or  any  other 
Act  the  persons  charged  with  them  may  be  indicted  as  ouend- 
ers  against  that  Act.  Again,  in  s.  40,  the  operation  of  which 
is  confined  to  statutory  forgeries,  it  is  expressly  and  unmistak- 
ably so  limited.  Sect.  41  deals  with  the  question  of  venue  in 
all  cases  of  forgery,  expressly  stating  that  it  shall  apply  to  all 
forgeries,  whether  by  statute  or  at  common  law.  Sect.  42 
deals  with  what  shall  be  a  sufficient  description  in  an  indict- 
ment of  "  any  instrument  charged  as  a  forgery,"  while  s.  44, 
which  makes  it  unnecessary  to  allege  an  intent  to  defraud  any 
particular  person,  admittedly  covers  forgeries  of  every  descrip- 
tion without  any  exception,  and  expresses  timt  intention  by 
the  very  same  words  used  in  s.  38,  "  any  instrument  whatso- 
ever." Is  it  possible  that  the  Legislature,  who  clearly  were 
alive  to  the  difference  between  common  law  and  statutory 
felonies,  can  have  intended  that  a  diif erent  construction  should 
be  put  on  these  same  words  when  used  in  s.  38  ? 

The  result  is  that,  in  my  opinion,  the  conviction  ought  to 
be  affirmed. 

In  regard  to  a  question  suggested  in  the  case,  whetlier  a 
person  by  pleading  guilty  to  an  indictment  thereby  admits 
the  truth  of  the  facts  stated  in  the  depositions,  I  think  it  right 


THE  QUEEN  v.  RILEY. 


411 


to  express  my  opinion  that  he  does  not.  He  admits  simply 
that  he  is  guilty  of  the  otfenco  as  charged  in  the  indictment, 
and  nothing  more. 

Loud  Russell  of  Killowen,  C.  J.,  read  the  following  judg- 
ment of 

WiLM,  J.  The  only  question  in  this  case  is  whether  a  post 
office  telegram  is  an  instrument  within  the  meaning  of  24  and 
25  Vict.  c.  98,  s.  38. 

After  a  careful  study  of  the  Act,  I  am  of  opinion  that  it  is 
so.  The  act  is  not  very  artistically  drawn,  and  the  words 
"instrument,"  "document,"  and  "  writing"  are  used  in  a  man- 
ner which  makes  it  sometimes  difficult,  at  first  sight,  to  say 
whether  a  real  distinction  is  intended  by  the  use  of  dififerent 
words.  Sections  1-26,  28,  30,  32,  35,  36,  37  and  40,  all  relate 
to  instruments  or  documents  of  various  kinds  known  by  definite 
designations,  and  so  described.  They,  therefore,  throw  no 
light  upon  the  present  question. 

Section  27  relates  to  the  forgery  of  "documents"  or  "  writ- 
ings "  intended  to  be  used  in  evidence.  Any  writing  so  used 
would,  in  ordinary  legal  phraseology,  be  called  part  of  the 
documentary  evidence  in  the  case,  and  probably  this  section 
would  have  been  construed  as  including  ever}'  description  of 
writing  so  used,  if  the  words  "  or  writing  "  had  been  omitted. 

Section  29  relates  to  the  forgery  of  "instruments"  made 
evidence  by  Act  of  Parliament.  The  same  remark  ajjplies. 
Such  "documents  or  writings"  must  necessarily  be  of  a  more 
or  less  formal  character,  and  the  phrase  "  document  or  writing  " 
in  this  section  would  appear  to  mean  exactly  the  same  thing 
as  "  instrument "  in  s.  29. 

The  same  remark  applies  to  s.  33,  where  the  corresponding 
phrase  is  "  instrument  or  writing."  In  s.  34,  the  word"  instru- 
ment "  must,  from  the  nature  of  the  enactment,  refer  to  writ- 
inffs  of  a  formal  character. 

In  8.  39,  which  relates  to  the  forgery  of  "  instruments  or 
writings  "  designated  in  Acts  of  Parliament  by  any  particular 
name  or  description,  it  is  obvious  that  the  meaning  of  the 
clause  would  have  been  exactly  the  same  if  the  words  "  or 
writings "  had  been  omitted. 

Sects.  40-45  are  a  group  of  enactments  for  facilitating  pro- 
cedure and  obviating  mere  technical  difficulties.    There  is  no 


I 


•i- 


412 


AMERICAN  CRIMINAL  REPORTS. 


Si' 


■I;'  '■  -.i'.'^'X':.  ■"   .''.'mi 


[     .vF 


'.u.m:-y 


iiiJif 


reason  why  they  should  not  hive  the  widest  constructi  ,t\ 
be  applied  to  every  kind  of  offence  which,  either  by  stiituto  or 
at  the  common  law,  constitutes  a  forgery. 

On  the  contrary,  there  is  every  reason  why  sections  insortod 
for  the  purpose  of  advancing  justice  by  getting  rid  of  mero 
useless  technicalities  should  be  applied  to  forgeries  of  every 
description.  Some  of  these  sections  are  older  than  the  Act  of 
18C1.  In  all  that  is  material  to  the  present  discussion  s.  42 
which  malvcs  it  unnecessary  in  the  indictment  to  do  more  than 
describe  the  forged  writing  by  any  designation  by  which  it 
may  be  generally  known,  is  a  repetition  of  14  and  15,  Vict.  c. 
100,  s.  5;  and  s.  44,  which  makes  it  unnecessary  to  specify  or 
prove  more  than  an  intent  to  defraud  generally,  is  a  re|)eti- 
tion  of  part  of  s.  8.  of  the  same  Act,  whilst  the  rest  the 
same  s.  8,  which  applies  the  same  rule  to  indictment  ob- 

taining money  by  false  pretences  has  been  separaic*^  re- 
enacted  in  the  Larceny  Act  ('24  and  25  Vict.  c.  9C),  s.  88.  In 
s.  42  the  expression  used  is  "  any  instrument,"  and  in  s.  44 
"  any  instrument  whatsoever." 

Aly  own  experience  in  drawing  indictments  goes  back  to 
1851,  and,  in  my  experience  since  that  time,  it  has  been  the 
practice  to  treat  ss.  42  and  44  as  applying  to  forgeries  at  com- 
mon law,  as  well  as  to  statutory  forgeries.  Inquiry  has  satis- 
lied  me  that  the  experience  of  others  widely  conversant  with 
the  subject  agrees  with  my  own. 

The  phrase  used  in  section  38,  under  which  the  present 
question  arises,  is,  "  any  instrument  whatsoever."  There  can 
be  no  difference  in  meaning  between  this  phrase  and  either  of 
those  used  in  ss.  42  and  44.  It  would  be  most  unwise  to  throw 
a  doubt  upon  the  correctness  of  the  interpretation  put  ever 
since  14  and  15  Vict,  upon  the  words  used  in  ss.  42  and  44, 
nor  is  there  the  slightest  ground  for  doing  so;  and  the  only 
question  is,  whether'  there  is  any  more  reason  for  restricting 
the  nieaning  of  "  instrument "  in  s.  38  than  there  is  in  tliose 
sections.    I  can  see  none. 

It  seems  to  me  obvious  that  the  words  "  instrument,"  "doc- 
ument "  and  "  writing  "  have  not  been  selected  for  any  partic- 
ular logical  reason  to  be  used  in  anj'  particular  section,  and 
that  whether  they  are  to  have  a  restricted  or  a  general  sense 
must  be  gathered  from  the  nature  of  the  particular  enactment. 
I  have  pointed  out  some  sections  where  the  context  docs  neces- 


THE  QUEEN  r.  RILEY. 


413 


garily  restrict  the  application;  but  oven  there  it  is  rather  the 
application  than  the  meaning  of  the  term  adopted  tliat  is  so 
narrowed. 

Section  38  provides  that "  whosoever,  with  intent  to  defraud, 
shall  demand,  receive,  or  obtain,  or  cause  or  procure  to  bo  de- 
livered or  paid  to  any  person,  or  endeavour  to  receive  or  ob- 
tain, or  to  cause  or  procure  to  be  delivered  or  paid  to  any 
person  any  chattel,  money,  security  for  money,  or  other  prop- 
ertv  whatsoever,  under,  upon,  or  by  virtue  of  any  forced  or 
altered  instrument  whatsoever,  knowing  the  same  to  L  ■  i.ged 
or  a'tered,  or  under,  upon,  or  by  virtue  of  any  probate  or  let- 
ters of  administration,  knowing  the  will,  testament,  codicil, 
or  testamentary  writing  on  which  su' li  probate  or  letters  of 
administration  shall  have  been  obtained  to  have  been  torged 
or  altered,  or  knowing  such  probate  or  letters  of  administra- 
tion to  have  been  obtained  by  any  false  oath,  affirmation  or 
affidavit,  shall  bo  guilty  of  felony,  and,  being  convicted  thereof, 
shall  be  liable,  at  the  discretion  of  the  Court,  to  bo  kept  in 
penal  servitude  for  any  term  not  exceeding  fourteen  years  and 
not  less  than  three  years,  or  to  be  imi)risoned  for  any  term 
not  exceeding  two  years." 

The  essence  of  this  section  appears  to  be  that  where  prop- 
erty has  been  obtained  not  merely  by  false  [)retence8,  but  by 
false  pretences  into  which  forgery  or  its  equivalent  enters, 
the  offence  shall  be  constituted  a  felony,  and  may  involve 
much  severer  punishment  than  either  the  mere  obtaining  of 
money  by  false  pretences  or  a  mere  forgery  at  common  law. 

I  can  not  see  anything  in  the  nature  of  such  a  section  which 
should  make  it  necessary  or  desirable  to  restrict  the  applica- 
tion of  the  word  "  instrument"  to  writings  of  a  formal  char- 
acter, and  I  think  it  is  meant  to  include  writings  of  every 
description,  if  false  and  known  to  be  false  by  the  person  who 
makes  use  of  them  for  the  purpose  indicated. 

The  severity  of  the  possible  punishment  has  been  appealed 
to  as  a  reason  for  restricting^  the  application  of  the  section  to 
documents  of  a  more  formal  character,  or  documents  having 
in  themselves  some  legal  operation.  The  argument  appears  to 
me  to  have  no  weight.  The  section  embraces  cases  involving 
forgeries  which  may  be  of  a  very  heinous  nature,  such  as  forg- 
eries of  wills,  or  letters  of  administration.  It  always  involves 
the  commission  of  one  crime  by  means  of  another.    There  is 


51 


>  ( 


I  ^"1 J 


414 


AMERICAN  CRIMINAL  REPORTS. 


no  minimum  of  punishment,  and  the  limits  of  discretion  arc  not 
unreasonable.  Theoretically  a  boy  may  be  sent  to  penal  serv- 
itude for  five  years  for  stealing  an  apple,  and  that  thougli  it 
be  his  first  offence;  and  the  limits  of  discretion  in  cases  of 
many  offences,  whether  triable  at  quarter  sessions  or  at  assizes 
only,  are  equally  large. 

No  violence  is  done  by  this  construction  to  the  use  of  the 
word  "  instrument."  In  Coogan's  Case,  1  Lea.  440;  2  East,  P. 
C.  c.  19,  s.  43,  p.  948,  Butler,  J.,  defined  forgery  at  common 
law  as  the  "  making  of  a  false  instrument  with  intent  to  de- 
ceive." Blackstone,  J.,  defines  forgery  as  the  "  fraudulent 
making  or  alteration  of  a  writing  to  the  prejudice  of  another 
man's  right."  4  Comm.  247.  It  is  plain  that  in  these  defini- 
tions "instrument"  and  "writing"  are  synonymous.  East, 
himself  a  writer  of  considerable  authority,  defines  forgery  in 
one  passage  as  "  a  false  making — a  making  malo  anhno  of  any 
written  instrument  for  the  purpose  of  fraud  and  deceit"  (2 
Pleas  of  the  Crown,  852);  and  in  another  paragraph  as  "  the 
counterfeiting  of  any  writing  with  a  fraudulent  intent  whereby 
another  may  be  prejudiced."  {Ih.  801).  It  is  obvious  that 
the  writer  in  these  passages  treats  "  instruments"  and  "  writ- 
ings," as,  for  the  present  purpose,  synonymous. 

For  these  reasons  I  am  clear  that  the  conviction  must  be 
affirmed. 

1  think  further  that,  even  if  the  true  construction  of  the 
word  "instrument"  required  a  more  restricted  meaning,  the 
telegram  in  the  present  case  would  fall  within  it.  It  was  a 
writing  which,  if  accepted  and  acted  upon,  would  establish  a 
business  relation  and  lead  directl}'  to  business  dealings  with 
another  person.  It  is  true  that  the  dealings  were  of  such  a 
nature  that  they  led  to  no  legal  rights  and  could  not  be  made 
the  foundation  of  an  action;  but  they  were  not  forbidden  by 
law,  and  in  that  sense  and  to  that  extent  were  legitimate.  A 
postoifice  telegram  is  issued  by  a  public  department  in  the 
course  of  business,  and  in  the  present  case  the  telegram  ap- 
pears to  me  to  have  sufficient  formality,  both  in  its  origin  and 
in  the  use  to  which  it  was  put,  to  deserve  the  name  of  an  "  in- 
strument." 

The  only  hesitation  I  have  in  saying  so  is  lest  it  should 
appear  to  imply  any  lingering  doubt  in  my  own  mind  as  to 
the  correctness  of  the  wide  meaning  I  have  given  in  the  prin- 


mw-:M 


THE  QUEEN  v.  RILEY. 


415 


cipal  part  of  my  judgment  to  the  word  "  instrument."  I  have 
no  doubt  or  hesitation  about  the  matter,  and  I  notice  the 
second  point  only  because  it  was  argued  before  us. 

Lord  Russell  of  Killowen,  C.  J.  I  have  onlj'^  one  observa- 
tion to  add  to  the  judgments  which  have  just  been  read.  It 
is  obvious  that  this  case  is  not  one  of  general  importance, 
althoun'h  it  is,  of  course,  of  importance  to  this  particular  pris- 
oner, because  it  is  quite  clear  that  the  prisoner  in  what  ne  did 
committed  an  act  of  forgery  at  common  law;  it  is  also  clear 
that  he  committed  a  serious  misdemeanour  within  the  Tele- 
graph Act,  and  it  is  probable  that  his  conduct  also  amounted 
to  an  obtaining  of  money  by  false  pretences.  I  do  not  desire 
to  dissent  from  the  result  at  which  the  majority  of  this  court 
have  arrived;  but  for  my  own  part  I  share  the  doubts  expressed 
by  my  brother,  Vauohan  Williams,  in  the  judgment  which  he 
is  about  to  read.  Mathew,  J.,  authorizes  me  to  state  that  he 
concurs  in  the  decision  of  the  majority  of  the  court. 

Vaughan  Williams,  J.,  read  the  following  judgment :  I  con- 
cur in  the  opinion  that  the  defendant,  on  the  facts  of  this  case, 
was  guilty  of  coui.terf siting  a  writing  with  intent  to  defraud, 
and  therefore  of  forgery  by  the  common  law;  but  I  do  not 
think  he  was  guilty  of  any  statutory  forgery,  or  that  the  tele- 
gram sent  falls  within  the  description  of  any  of  the  written 
instruments  the  forgery  of  which  is  made  felony  by  24:  and 
25  Vict.  c.  98;  but  I  propose  to  make  some  observations  on 
the  question  whether  the  defendant  was  guilty  of  an  offense 
within  s.  38  of  that  statute. 

This  question  turns  on  the  meaning,  in  s.  38  of  24  and  25  Vict, 
c.  98,  of  the  words  "any  forged  or  altered  instrument  what- 
soever." Do  these  words  mean  any  writing  whatever,  or 
ought  these  words  to  be  read  subject  to  some,  and  what,  limi- 
tation ? 

Two  possible  limitations  occur  to  one :  (a)  that  "  instrument " 
must  be  read,  not  as  including  all  writings,  but  only  such 
writings  as  contain  a  contract,  order  or  legal  act  of  the  writer; 
(b)  that  "  instrument "  in  s.  38  means  a  writing  the  forgery 
of  which  is  made  a  felonious  forgery  in  the  preceding  sec- 
tions. 

The  statute  is  a  consolidating  and  amending  Act  relating  to 


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AMERICAN  CRIMINAL  REPORTS. 


indictable  offences  by  forgery — i.  e.,  consolidating  and  amend- 
ing the  statute  law  relating  to  offences  which  are  made  for- 
gery by  statute.  The  greater  part  of  the  sections  are  culled 
from  older  statutes  and  put,  as  it  were,  on  a  statutory  file.  In 
construing  such  sections,  I  do  not  think  one  ought  to  let  the 
meaning  of  a  word  in  one  section  affect  the  construction  in 
another  section  unless  the  sections  are  plainly  connected.  As 
to  limiting  the  word  ''instrument"  to  contracts,  orders,  and 
legal  pcts,  I  do  not  think  that  the  meaning  to  be  attached  to 
the  word  in  the  various  sections  of  the  act  affords  any  guide 
to  the  meaning  of  the  Act  in  s.  38.  The  meaning  is  sometimes 
the  limited  meaning,  sometimes  the  wide  meaning. 

The  meaning,  however,  in  each  case  is  to  be  derived  from 
the  collocation  of  the  word  with  the  provisions  of  the  particu- 
lar section.  The  use  of  the  word  "  instrument "  in  this  Act  as 
a  whole  does  not  in  any  case  seem  to  afford  any  assistance.  I 
mention  this  because  undue  stress  seems  to  me  to  be  attached 
to  the  use  of  the  word  "instrument"  in  s.  42. 

I  think  one  must  construe  the  words  "  any  *  *  *  instru- 
ment whatsoever  "  in  s.  38  in  reference  to  their  collocation  in  s. 
38,  and  not  in  reference  to  the  use  of  the  word  "  instrument '' 
in  other  sections  of  the  Act;  but  applj'ing  this  guide  of  con- 
struction, I  find  nothing  to  lead  me  to  the  conclusion  that 
"instrument"  in  that  section  is  limited  to  writings  containing 
a  contract  or  legal  act. 

Secondly,  as  to  limiting  "  any  instrument  *  *  *  ^vhat- 
soever "  to  writings,  the  forgery  of  which  is  made  felony  by 
the  preceding  sections,  it  will  be  observed  that  the  first  thirty- 
eight  sections  deal  with  the  forgery  of  specific  instruments, 
writings,  or  matters,  or  with  matters  connected  with  each  such 
offence.  Each  group  of  sections  is  introduced  with  a  heading, 
g.  ^.,  "As  to  forging  deeds,  wills,  bills  of  exchange,"  etc. 
Section  38  itself  is  headed,  "  As  to  demanding  property  upon 
forged  instruments."  The  sect  ions  following  s.  38  are  headed, 
"  As  to  other  matters."  Do  the  words,  "  by  virtue  of  any 
forged  or  altered  instrument  whatsoever,"  in  s.  38,  mean  any  of 
the  forged  instruments  dealt  with  in  the  preceding  sections  'i 
Do  they  refer  exclusively  to  the  offences  created  by  the  act  ? 
I  am  inclined  to  think  that  this  is  the  true  construction, 
remembering  that  we  are  construing  a  penal  statute. 

The  subject  of  the  Act,  up  to  s.  38,  has  been  statutory  forgery, 


■"  etc. 


THE  QUEEN  v.  RILEY., 


417 


i.  e.  felonious  forgery.  This  section  creates  an  offence  with 
reference  to  forged  instruments.  Docs  it  not  mean  any  instru- 
ment being  one  of  those  of  which  the  forgery  is  made  felony 
by  this  act?  One  reason  for  attributing  this  meaning  is  that 
the  offence  of  demanding  property  upon  forged  instruments  is 
made  felony.  This  is  quite  reasonable  if  the  forgery  of  the 
instrument  itself,  with  intent  to  defraud,  is  made  felony;  but  it 
seems  unreasonable,  in  a  case  where  the  forgery,  with  intent  to 
defraud,  of  the  writing  itself  is  not  felony,  to  make  the  demand- 
ing propert}'^  upon  it  felony.  It  seems  unreasonable  to  make 
what  may  be  the  lesser  offence  felony,  when  what  may  be  the 
crraver  offence  is  not  feiony.  On  the  whole,  I  think  that  s.  38 
is  the  supplement  of  the  preceding  sections,  and  that  "  instru- 
ments" must  be  limited  to  instruments  (using  the  word  in  its 
widest  sense),  the  subject  of  the  preceding  sections. 

But  although  this  is  the  inclination  of  my  mind;  I  am  not 
prepared  to  differ  if  the  majority  of  the  judges  think  otherwise. 

Conviction  alfirmed. 

The  Solicitor  to  the  Post  Office,  solicitor  for  Crown. 
Jiiley  Blaekhuf/ty  solicitor  for  prisoner. 

jjoTE. — Indictment — Election  of  count. — Where  one  count  of  an  indict- 
ment cliarges  forgery  of  a  clieck  therein  set  out,  and  the  other  count 
charges  the  uttering  thereof,  it  is  proper  to  refuse  to  compel  the  State  to 
elect  under  which  count  it  will  proceed.    People  v.  Warner,  104  Mich.  337. 

Facts  necessary  to  be  stated. — An  indictment  which  proceeded  upon  the 
theory  that  a  certain  certificatfi  was  of  such  a  nature  that,  if  genuine,  it 
would  create  a  demand  against  the  county,  did  not  allege  facts  sufficient  to 
constitute  forgery.    State  v.  Oee.  28  Oregon,  100. 

Same. — An  indictment  which  alleges  that  defendant  did  "  forge  and 
alter"  a  certain  note,  without  alleging  that  it  was  done  "without  author- 
ity," is  insufficient.    Com.  v.  Bowman,  96  Ky.  8. 

Motion  in  arrest  of  judgment. — Where  an  indictment  for  forgery  is  insuf- 
ficient iis  failing  to  allege  that  the  forgery  was  done  "  without  authority,"' 
a  motion  in  arrest  of  judgment  is  properly  sustained.  Com.  v.  Bowman, 
96  Ky.  8. 

Dispensing  with  certain  essentials  bi/  statute— Efect  q/'— Though  the  stat- 
ute of  Mississippi  provides  that  when  it  sliall  be  necessary  to  make  an  aver- 
ment in  an  indictment  as  to  any  instrument,  it  shall  be  sufficient  to  describe 
such  instrument  by  any  name  or  designation  by  which  it  is  usually  known, 
or  by  the  purjxjrt  thereof,  the  description  of  an  instrument  in  an  indictment 
for  forgery  as  "  a  certain  instrument  of  writing,  commonly  called  a  '  deed,' 
purporting  to  be  the  act  of  one  F.,  by  which  the  interest  in  certain  real 
property  purported  to  be  transferred  and  conveyed  by  said  F.  to  said  R.,'> 
is  insufficient.  72  Miss.  110. 
27 


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AMERICAN  CRIMINAL  REPORTS. 


Not  neccsmry  to  set  out  instrument  in  haec  verba, — While  in  an  indict- 
ment for  forgery  it  is  unnec^esaary  to  set  forth  a  copy  or  fac  simile  of  the 
instrument  forged,  yet  if  this  is  done,  and  there  is  a  material  viiriunco 
between  the  copy  so  set  out  and  the  paper  offered  in  evidence,  such  jmper, 
on  motion  of  the  accused,  should  be  excluded  from  the  consideration  of  the 
jury.    State  v.  Fleshvian,  40  W.  Va.  726. 

Same,  token  set  out — Variance  fatal. — When  the  alleged  forged  note  is 
set  out  in  haec  verba,  and  in  tlie  body  tliereof  are  the  words  "  with  six  per 
cent  int.  from  date,"  and  the  note  offered  in  evidence  contains  no  sucli 
words,  this  is  a  variance,  both  in  substance  and  legal  effect,  fatal  to  tlie 
introduction  of  such  last  mentioned  note  as  evidence  in  support  of  tlie  uUe- 
gations  of  the  indictment.    Id. 

Intent  to  defraud. — It  is  sufficient  in  an  information  for  forgery  tt>  charge 
the  intent  to  defraud  in  general  terms.  It  is  not  necessary  to  state  or  prove 
an  intent  to  defrand  any  particular  person.  Morearty  v.  State,  40  Neb. 
652. 

Wliat  subject  of  forgery.— An  order  to  deliver  to  bearer  a  specifio  article 
of  personal  property  is  within  the  definition  of  section  145  of  our  Criminal 
Code  in  relation  to  forgery,  as  "any  order  or  any  warrant  or  retjuest  for 
*    *    *    the  delivery  of  goods  and  chattels  of  any  kind."    Id. 

Same. — The  order  or  request,  upon  which  tiio  charge  in  this  case  was 
founded,  to  let  bearer  have  a  designatetl  article  of  personal  projierty  held  to 
be  the  subject  of  forgery,  though  not  addressed  to  any  person  by  name; 
and  where  such  an  order  is  set  forth  by  copy  in  an  information  charging  its 
forgery,  and  it  is  apparent  from  its  face  or  its  terms  tliat  there  was  a  jws- 
sibility  by  its  use  to  deprive  some  person  of  i>rt)ix>rty  rights,  the  informa- 
tion is  sufficient  without  averment  of  any  facts  extrinsic  to  the  instrument 
to  extend  or  explain  its  terms. 

Duplicity. — An  indictment  that  defen»lant  forged  a  check,  and,  with 
intent  to  defraud  one  C,  offered  him  the  check  in  payment  for  go«)d8,  does 
not  charge  two  crimes,  within  Code  Cr.  Proc,  tjjj  278,279,  providing  tliat 
an  indictment  must  charge  but  one  crime,  except  it  may  charge,  in  sepa- 
rate counts,  the  crime  to  have  been  committed  in  different  ways.  I'eople 
V.  Altman,  147  N.  Y.  473. 

Other  forgeries. — In  a  prosecution  for  forgery  of  a  check,  it  is  reversible 
error  to  admit  in  evidence,  to  show  defendant's  intent  in  passing  the  check, 
other  checks  found  on  defendant's  person,  without  proof  that  they  were 
also  forgeries.    Id. 

Receipt  by  one  signing  as  agent. — When  one,  without  authority,  executes 
a  receipt  for  money,  purporting  on  its  face  to  Ih)  executed  by  him  as  agent 
for  the  person  whose  name  ho  signs,  he  is  not  guilty  of  forgery  at  conunon 
law,  or  under  Pen.  Code,  §  470,  which  eimmerat^^'s  the  kinds  of  writing 
which  may  be  the  subject  of  forgery.    People  v.  Bendit,  111  Cal.  374. 


ATKINS  V.  STATE.  4I9 


Atkins  v.  State. 

(95  Tenn.  474.) 

GAMiNa :    Accessory— Operating  gaming  device  for  another. 

1.  There  are  no  accessories  to  misdemeanors,  but  all  connected  with  the 

offense  are  principals. 

2.  One  who  operates  for  another,  at  a  fixed  salary,  a  device  known  as  a 

"  six  wheel,"  whereby  money  is  won  or  lost,  though  he  has  no  interest  in 
tlie  affair  further  than  hib  salary,  is  guilty  of  a  misdemeanor  under 
Mill  &  V.  Code,  j^  5688,  making  it  a  misdemeanor  to  play  at  any  game 
of  hazard  for  money,  and  under  Id.  j5  5689,  making  one  guilty  of  the 
same  offetise  who  aids  or  assists  in  keeping  or  exhibiting  any  gaming 
device. 

Appeal  in  error  from  the  Criminal  Court,  Knox  County;  T. 
A.  li.  Kelson,  Judge. 

Martin   Atkins  was  convicted  of 
appeals.    Affirmed. 


unlawful   gaming,  and 


Horace  Foster,  for  appellant. 
Atti/.  Gen.  Pickle^  for  State. 

Caldwell,  J.  Martin  Atkins  was  presented,  tried  and  con- 
victed in  the  Criminal  Court  of  Knox  County  for  unlawful 
gaining.  The  presiding  judge  fined  him  $2.50,  and  he  appealed 
in  error.  On  the  trial  below  it  was  unmistakably  shown  that 
the  plaintiff  in  error  had  been  engaged  for  some  time  in  the 
operation  of  a  gaming  device,  known  as  a  "  six  wheel."  Tes- 
tifying in  his  own  behalf,  he  said :  "  1  was  working  for  T.  M. 
Smart.  He  gave  me  $2  a  day  to  run  his  wheel  for  him.  He 
hud  a  license  to  run  a  six  wheel.  His  was  a  six  wheel.  *  *  * 
Smart  made  his  living  by  running  this  wheel.  The  numbers 
were  from  1  to  6.  If  vou  put  a  dollar  down  on  the  2,  and  if 
it  stopped  on  that  number  you  would  get  $4.00;  if  not,  the 
man  that  run  the  wheel  would  get  the  dollar.  I  was  only 
employed  by  the  day,  and  had  no  interest  in  the  business." 
These  facts  make  a  clear  case  of  guilt  on  the  part  of  the 
plaintiff  in  error.  That  the  wheel  was  a  gambling  contrivance, 
and  those  participating  in  the  games,  thereon  were  guilty  of 
unlawful  gaming,  is  bej'ond  question.  The  license,  which 
Smart  is  said  to  have  had,  was  not  produced;  and,  if  it  had 


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420 


AMERICAN  CRIMINAL  REPORTS. 


been,  it  would  have  afforded  no  protection  to  any  one,  because 
there  is  no  law  authorizing  the  grant  of  such  license,  and 
unauthorized  license  is  the  same  as  no  license  at  all.  Smart 
the  owner  of  "  the  business,"  and  his  partners  were  undoubt- 
edly guilty  of  unlawful  gaming  every  time  the  wheel  was 
operated  for  money  or  other  things  of  value;  and  the  plaintiff 
in  error,  who  operated  it,  was  as  certainly  guilty  of  the  same 
offense  in  each  instance,  though  he  "  had  no  interest  in  the 
business"  as  owner,  and  was  only  employed  by  the  day  at 
fixed  wages.  The  relations  of  principal  and  agent,  employer 
and  employe,  are  not  recognized  in  the  criminal  law.  By  that 
law  every  man  must  stand  for  himself  No  man  can  author- 
ize another  to  do  what  he  may  not  lawfully  do  himself.  Tf  the 
attempt  to  confer  such  autiiority  be  made,  and  the  unlawful 
act  be  done,  both  are  guilty.  In  felonies,  all  unlawful  par- 
ticipants are  either  principals  or  accessories;  in  misdemeanors 
they  are  all  principals,  and  equally  guilty.  State  v.  Smithy  2 
Yerg.  272;  Cadiii  v.  State,  4  Yerg.  144;  State  v.  Caswell^  2 
Humph.  400;   1  Bish.  Cr.  Law,  §§  594,  627. 

"  If  any  person  play  at  any  game  of  hazard  or  address  for 
money  or  other  valuable  thing,  or  make  any  bet  or  wager  for 
money  or  other  valuable  thing,  he  is  guilty  of  a  misdemeanor." 
Mill.  &  V.  Code,  §  568S.  And  again :  "  If  any  person  encour- 
age or  promote,  aid  or  assist  the  playing  of  any  game,  or  the 
making  of  any  bet  or  wager,  for  money  or  other  valuable 
thing,  or  keep  or  exhibit  any  gaming  table  or  device  for  gam- 
ing, he  is  also  guilty  of  a  misdemeanor."  Id.  5689.  Tiie 
plaintiff  in  error  is  guilty  under  both  of  these  provisions.  By 
standing  for  and  representing  one  side  of  each  game  upon  the 
wheel  he  became  guilty  under  the  former  ])rovision,  and  by 
operating  the  wheel  ho  became  guilty  in  each  instance  under 
the  latter  provision.  A  person  who,  without  betting  himself, 
plays  cards  with  others  whom  he  knows  to  bo  betting  some- 
thing of  value,  is  guilty  of  encouraging  and  promoting  the 
offense  of  gaming."  Ilowlett  v.  State,  5  Yerg.  145.  In  that 
case  Judge  Peck,  speaking  for  this  court,  said :  "  lie  who 
plays  is  self-tempted  into  the  debauch,  and  if  innocent  of  the 
betting,  it  is  still  a  cringe  if  countenance  be  given  to  such 
as  may."  5  Yerg.  152.  In  Smith  v.  State,  5  Humph,  164,  it 
was  decided  that  Smith,  who  engaged  in  "  pitching  dollars," 
without  betting  himself,  but  with  knowledge  that  others  were 


ATKINS  V.  STATE. 


421 


bettin''  on  the  game,  was  indictable  and  punishable  for  gam- 
ino-.  The  court  in  the  latter  case,  after  approving  the  prin- 
ciple announced  in  Ilowlett's  case,  supra,  said :  "  If  a  party 
plays  at  a  game  upon  which  he  knows  others  are  betting,  he 
becomes  thereby  a  guilty  participator  in  the  gaming,  although 
he  may  not  bet  himself."  Smith  v.  State  5  Humph.  165.  See 
also  State  v.  Keith,  3  Leg.  Rep.  22S;  McGowati  v.  State,  9  Yerg. 
185,  and  Fugate  v.  State,  2  Humph.  398.  In  the  case  of 
Eiihanks  v.  State,  3  Heisk.  488,  a  mere  clerk  who  sold  prize 
candy  packages  for  his  employer  was  held  to  be  guilty  of 
gaming;  and  in  Caswell's  case,  previously  cited  herein,  the 
court,  referring  to  the  alleged  relation  of  employer  and  em- 
ploye in  unlawful  tippling,  said :  "  In  minor  offenses,  aiders 
and  abettors  are  principals.  Therefore,  if  one  procure  the 
spirits  for  the  purpose  of  retailing,  and  hire  another  to  attend 
to  the  bar  as  his  servant,  and  he  retails,  both  are  guilty." 
2  Humph.  400.  To  same  effect  are  numerous  cases  mentioned 
in  1  Bish.  Cr.  Law,  §  627. 

It  can  be  of  no  avail  to  the  plaintiff  in  error,  upon  the  ques- 
tion of  guilt,  that  he  thought  he  had  a  lawful  right  to  operate 
the  wheel  for  Smart.  Ignorance  of  law  is  no  excuse  for  its 
violation.  There  is  no  doubt,  however,  that  some  allowance 
was  made  for  his  professed  good  faith  when  the  court  came 
to  consider  the  measure  of  punishment,  and  fined  him  only 
$2.50.    Affirmed. 

Note. — Rooms  used  hy  rfith— Mr.  Justice  Knowlton  in  Com.  v,  Blankin- 
ship,  165  Mass.  40,  holds  that  rooms  used  for  gambling  by  a  club  and  such 
other  persons  astha  members  invita  is  a  commjn  gaming  house.  "  Under 
the  English  statute,"  he  says,  '•  which  is  not  identical  with  ours,  it  is  held 
that  a  building  may  be  a  common  gaming  house,  although  resorted  to 
only  by  members  of  a  club  for  whose  use  the  place  is  maintained.  Jenka 
V.  Turjyin,  13  Q.  B.  Div.  505.  Gaming  houses  in  this  country  and  in  Eng- 
land are  seldom  open  to  all  the  public.  Usually  only  those  persons  are 
admitted  who  are  supposed  to  be  willing  to  have  the  law  violated  in  this 
way.  Often  strong  doora  and  double  locks  are  used  to  keep  out,  not  only 
officers  of  the  law,  but  all  others  who  are  not  known  to  the  proprietor,  or 
vouched  for  by  his  friends.  The  word  "  common,"  as  applied  to  a  gam- 
ing house,  does  not  necessarily  mean  that  it  is  open  to  all  the  public. 

Instruction— Judge  becoming  unusually  emphatic. — On  trial  of  an  infor- 
mation under  statute  of  Arkansas  making  it  a  penal  offense  to  be  directly 
or  indirectly  interested  in  keeping  or  exhibitin:;  any  gambling  device,  a 
charge  that  "  the  law  does  not  tolerate  any  subterfuge  in  violation  of  its 
penal  laws,  rnd,  *  *  *  if  you  believe  *  *  *  that  the  defendant 
employed  any  person  to  watch  a  machine  of  the  description  charged, 


'>  < 


t^ 


!    I';-' 

I     I, 


■•'i'"t\^!-'''^^  - 


?!1 


.■>l?!.^- 


422 


AMERICAN  CRIMINAL  REPORTS. 


b  :.ii 


::i»m^ 


I  -a 


*  *  *  you  will  be  authorized  to  convict,"  did  not  violate  Const,  art.  7 
§  23,  prohibiting  judges  from  charjjfing  on  matters  of  fact;  it  b?ing  con- 
ceded that  defendant  employed  a  person  to  look  after  the  machine  "to 
keep  any  person  from  breaking  it:"  tiiat  it  was  a  gambling  device,  and  in  a 
public  place.    Jeffries  v.  State,  61  Ark.  308. 

It  is  not  only  undignified,  but  unjust  in  a  judge  to  become  excited  or  to 
throw  the  weiglit  of  hia  influence  on  either  side  of  a  case. 

Indictment— Apparatus  for  registering  loagevs  and  selling  pools.~ln  a 
prosecution  for  violation  of  the  statute  of  Connecticut,  an  indictment 
charging  defendant  with  keeping  a  place  with  apparatus  for  registering 
wagers,  and  also  for  the  purpose  of  buying  and  selling  pools,  as  the  keep- 
ing of  a  place  for  either  of  these  purposes  is  forbidden  by  the  statute,  does 
not  charge  two  offenses.    State  v.  Folk,  66  Conn.250. 

Same. — An  indictment  under  statute  for  being  engag'jd  in  the  business  of 
transmitting  money  out  of  the  State  to  be  bet  on  horse  races  is  insufficient, 
unless  it  charges  that  defendant  had  knowledge  of  the  unlawful  purpose 
for  which  the  money  was  transmitted  out  of  the  State.    Id. 

Same. — ^Under  an  indictment  for  keeping  a  place  for  transmitting  money 
to  be  bet  on  races  out  of  the  State,  it  is  no  defense  that  defendant  was  con- 
cerned in  it  as  a  corporator  or  agent  of  a  corporation  authorized  to  do  such 
business  in  another  State.    Id. 


Grand  Jcry:  Discharge- 


State  v.  Peterson  et  al. 


(61  Minn.  73.) 

■Ordering  new  venire- 
dictment— Effect  of. 


-Jury  list —Dismissing  in- 


1.  The  district  court  has  the  power,  under  the  statute,  to  discharge  the 

grand  jury  impaneled  at  a  regular  general  term  of  the  district  court, 
adjourn  the  term  to  a  future  day,  and  order  a  new  venire  of  grand 
jurors  to  be  drawn  and  summoned  for  such  adjourned  term. 

2.  Such  new  venire  may  be  drawn  from  the  regular  jury  list  selected  by 

the  county  commissioners  and  certified  and  filed  with  the  clerk  of  the 
court. 

3.  The  statute  requires  such  commissioners  to  make  out  separate  lists  of 

grand  and  petit  jurors.  Held,  two  separate  lists  following  one  heading, 
and  certified  to  by  only  one  certificate,  comply  with  tho  staUite.  Held, 
the  certificate  in  this  case  is  sufficient. 

4.  The  number  of  names  on  the  grand  jury  list  was  reduced  to  forty-nine 

by  the  drawing  of  the  grand  jury  for  the  regular  term.  The  county 
commissioners  did  not  meet  after  such  drawing  and  before  the  draw- 
ing of  the  grand  jurors  for  the  adjourned  term.  Held,  a  grand  jury 
for  such  adjourned  term  Alight  legally  be  drawn  from  said  forty-nine 
names. 

5.  The  dismissal  of  an  indictment  on  the  motion  of  the  county  attorney, 


ii\rim 


STATE  V.  PETERSON  ET  AL. 


423 


after  the  same  haa  been  attacked  by  demurrer,  is  not  equivalent  to  a 
decision  of  the  court  auntaining  the  demurrer,  so  as  to  prevent  the  case 
from  being  resubmitted  to  the  same  ur  another  grand  jury  without  the 
order  of  the  court. 
6.  On  tiie  dismissal  of  an  indictment  on  the  motion  of  the  county  attorney, 
a  second  indictment  may  be  found  by  the  same  grand  jury  for  tlie 
same  offense,  on  the  evidence  already  received,  on  which  the  former 
indictment  was  found,  and  it  is  not  necessary  that  any  new  or  addi- 
tional evidence  be  received.  Held,  the  motion  to  set  aside  the  second 
indictment  was>correctly  denied. 

Case  certified  from  District  Court,  Polk  County;  Frank 
Ives,  Judge. 

Gustavo  Peterson  and  John  J.  Ostby  were  indicted  for  sell- 
ing into.xicating  liquors  to  a  minor.  A  motion  to  set  aside  the 
indictment  was  denied,  and  the  case  was  certified  to  the  supreme 
court.    Affirmed. 

IT.  W.  Childs,  Attorney-General;  Geo.  B.  Edgerton^  Assist- 
ant Attorney-General;  and  Z.  E.  Gossman,  County  Attorney, 
for  the  State. 

//.  Steenerson^  for  defendants. 


Canty,  J.  The  defendants  were  indicted  at  an  adjourned 
term  of  the  district  court  for  the  crime  of  selling  on  Januar}^ 
14,  1S95,  intoxicating  liquor  to  a  minor.  They  moved  to  set 
aside  the  indictment  on  the  grounds  hereinafter  stated,  the 
motion  was  denied  by  the  court,  and  the  judge  thereof  certi- 
fies to  this  court  the  question  whether  it  was  error  to  deny 
said  motion.  The  regular  general  term  of  the  district  court 
of  Polk  county  commenced  on  the  3d  of  December,  1894.  On 
December  10th  the  grand  jur}^  appeared  before  the  covirt  and 
reported  that  they  had  finished  their  business. 

Thereupon  the  judge  stated  to  them  that  they  had  failed  to 
do  their  duty;  "  that  he  knew  there  Avas  sufficient  evidence 
before  them  to  find  in<lictments  in  cases  where  they  had  failed 
to  do  so;"  and  that  he  felt  it  his  duty  to  order  a  special  venire 
for  twenty-three  grand  jurors  to  issue  immediately;  and  there- 
fore discharged  them.  The  court  then  ordered  a  special  venire 
for  twenty-three  grand  jurors,  returnable  December  17th,  to 
issue,  but  later  in  the  day  modified  the  order  so  as  to  make  the 
venire  returnable  January  15,  1895.  The  venire  was  issued 
and  placed  in  the  hands  of  the  sheriff,  but  was  afterward 


■i 'fvj..,'. 

■  V-    ■ 

'^;^B 

ufe'^'i 

wM 

4 '.  i 


** !, 


42:1 


AMERICAN  CRIMINAL  REPORTS. 


On  December  22,  1S94,  the 


recalled  and  the  order  revoked 
following  order  was  made : 

"  StATK   of    MiNNKSCTA,  I  jjj^^^j^^    ^^^^^ 

roLK  County.         ) 

It  appearing  tome  that  there  is  a  necessity  for  an  adjourned 
terra  of  this  court  to  be  held  at  as  early  a  day  in  Jaiiuaiv 
1S95,  as  practicable,  for  the  trial  of  civil  and  criminal  cases- 
and  it  further  appearing  that  a  grand  jury  is  necessary  at  said 
adjourned  term  to  inquire  into  the  crimes,  if  any,  committed 
in  said  county — therefore  it  is  ordered  that  the  December, 
1S1)+,  term  of  this  court  be,  and  the  same  is,  adjourned  to,  and 
will  be  held  at  the  court  house  in  the  city  of  Crookston,  in  the 
said  county,  on  Tuesday,  the  15th  day  of  January,  1895,  at 
ten  o'clock  a.  m.  of  that  day,  at  which  time  the  petit  jury,  and 
each  and  every  member  thereof,  unless  duly  excused,  will 
appear  and  be  in  attendance  on  said  term.  And  it  is  further 
ordered  that  Nils  Muus,  clerk  of  this  court,  be  and  herebv  is 
instructed  forthwith  to  draw  a  grand  jury  for  said  adjourned 
term  in  the  manner  prescribed  by  law  for  drawing  jurors,  and 
on  or  before  the  first  day  of  January,  1895,  to  issue  his  venire 
to  the  sheritf  of  said  county,  directing  and  commanding  him 
to  duly  summon  such  jury  to  be  and  ap[x;ar  before  this  court, 
as  grand  jurors  at  such  adjourned  term,  at  the  time  and  place 
before  named. 

Dated  this  22d  day  of  December,  1894. 

By  the  Court,  Frank  Ives,  Judge." 

Pursuant  to  this  order,  on  the  same  day,  the  clerk,  in  the 
presence  of  the  sheriff  and  a  justice  of  the  peace,  drew  from 
the  jury  box  the  names  of  twenty-three  grand  jurors,  in  the 
manner  prescribed  by  section  6,  c.  107,  Gen.  St.  1878  (section 
7175,  Gen.  St.  1894),  and  on  the  same  day  the  clerk  issued  to 
the  sheriflf  a  venire  commanding  him  to  summon  the  persons 
so  drawn  to  appear  before  the  court  at  said  adjourned  term. 
Said  jurors  were  summoned  and  appeared  at  said  adjourned 
term,  were  sworn  and  charged  as  a  grand  jury,  and  returned 
the  indictment  here  in  question. 

1.  It  is  urged  by  defendants  that  the  court  had  no  power 
to  order  this  grand  jury  for  this  adjourned  term.  We  are  of 
the  opinion  that  the  court  had  such  power.  Section  15,  c.  64, 
Gen.  St.  1878  (section  4850,  Gen.  St.  1894),  provides  for  the 
holding  of  adjourned  terras,  and  provides  that  the  judge  "  may 


STATE  V.  PETERSON  ET  AL. 


425 


direct  ^rancl  ami  potit  jurors  to  be  drawn  and  summoned  for 
any  udjournod  or  special  term  in  the  manner  j)roscribed  by 

law." 

2.  It  is  further  urged  that,  if  the  court  had  power  to  order 
the  summoning  of  such  special  grand  jury,  it  should  have  been 
summoned  by  the  sheriff  from  the  body  of  the  county  in  the 
manner  proscribed  by  section  17  of  said  chapter  04,  Gen.  St. 
1878  (section  4852,  Gen.  St.  1894).  AVe  are  not  of  that  opin- 
ion. Section  17,  c.  64,  Gen.  St.  1878  (section  4852,  Gen.  St. 
1894),  applies  where  "at  any  term  of  ani/  district  court,  there 
is  a  deficiency  of  jurors,"  or  "an  entire  absence  of  jurors  of 
the  regular  panel,  whether  from  an  omission  to  draw  or  to 
summon  such  jurors  or  because  of  a  challenge  to  the  panel  or 
from  any  other  cause."  In  these  cases  the  court  may  order  a 
special  venire  to  issue  to  the  sheriff  of  the  county,  commjind- 
ing  him  to  "summon  from  the  county  at  large  *  *  *  com- 
petent persons  to  serve  as  jurors."  Under  tliis  section  jurors 
are  not  "  drawn "  at  all,  but  simply  "  summoned  "  by  the 
sheriff  from  the  county  at  large.  But  under  the  provisions  of 
So'ction  15,  c.  64,  Gen.  St.  1878  (section  4850,  Gen.  St.  1894), 
tiie  court  may  direct  grand  jurors  "  to  be  drawn  "  and  sum- 
moned for  an  adjourned  term,  v.iiich  was  done  in  this  case. 

3.  It  is  further  urged  that  no  legal  list  of  grand  jurors  had 
ever  been  prepared  or  certified  to  as  required  by  section  107, 
c.  8,  Gen.  St.  1878  (section  673,  Gen.  St.  1894),  which  requires 
the  county  commissioners  to  "make  out  separate  lists"  of 
grand  and  petit  jurors,  "  which  lists  shall  be  certified  and 
siirned  bv  the  chairman  of  the  board,  attested  by  the  clerk  and 
sliall  be  forthwith  delivered  to  the  clerk  of  the  district  court." 
At  the  head  of  the  list  in  question  it  is  stated  that :  "  The 
names  were  selected  by  the  board  of  county  commissioners  of 
Polk  county,  at  the  adjourned  annual  meeting  held  on  the 
21)th  day  of  January,  1894,  to  serve  as  grand  and  petit  jurors, 
respectively,  for  the  ensuing  year.  Grand  Jurors:  [Then 
follows  a  list  of  the  names  of  grand  jurors,  and  the  place  and 
election  district  in  which  each  resides.]  Petit  Jurors :  [Then 
follows  a  list  of  the  names  of  petit  jurors,  and  the  place  and 
election  district  in  which  each  resides.]  Certified  as  correct : 
C.  U.  Webster,  County  Auditor,  by  M.  Cornelius,  Deputy. 
[Seal  of  County  Auditor.]  A.  C.  Reinhart,  Chairman  of 
County  Board."    It  is  urged  that  "  separate  lists  "  of  grand 


'<^A 


•i    M^   • 


428 


AMERICAN  CRIMINAL  REPORTS. 


11  -ii 


■  4 


and  potit  jnrors  woro  not  miulo  out  as  required  by  the  stiitnto. 
Althouii^h  the  list  of  ^riind  jurors  and  tlio  list  of  jwtit  jurors 
are  both  included  under  one  head,  and  covered  l»y  only  ono 
certificate,  they  are  certainly  separate  lists.  The  statute  pre- 
scribes  no  particular  form  of  certificate,  and,  thoui^h  soinowliiit 
informal,  we  are  of  the  opinion  that  the  certificate  is  sufficient. 
Juj)£  V.  Dawson,  50  Minn.  82,  and  State  v.  Ih'ill,  58  ilinn.  ir.2. 

4.  There  is  nothing  in  the  point  that  there  were  but  forty- ' 
nine  names  on  the  grami  jury  list  when  this  special  grand  jury 
was  drawn,  the  number  on  said  list  having  been  reduced  to 
forty-nine  by  the  drawing  of  the  grand  jury  for  the  regular 
December  term,  and  the  county  commissioners  not  having  met 
after  that  drawing  and  before  the  drawing  of  such  special 
grand  jury  for  the  adjourned  term. 

5.  A  former  indictment  for  the  same  offense  was  found 
against  the  defendants  at  said  adjourned  term  by  the  sitm? 
grand  jury.  The  defendants  demurred  to  tiiat  indictment, 
and  on  the  day  set  for  the  argument  of  the  demurrer,  hut 
before  the  argument  the  indictment  was  dismissed  on  the 
motion  of  the  county  attorney,  and  the  case  was  resubmitted 
to  the  grand  jury,  who  found  the  indictment  here  in  question. 
Sections  7-9  of  chapter  111,  Gen.  St.  1878  (section  721)7-7L>1>9, 
Gen.  St.  185)4),  provhlethat  if  such  a  demurrer  is  sustained  the 
defendjint  shall  be  discharged,  unless  the  court  directs  the 
case  to  be  resubmitted  to  the  same  or  another  grand  jury.  It 
is  urged  that  such  dismissal  was  equivalent  to  sustainirfr  the 
demurrer,  and  that  it  does  not  appear  that  the  co  jrt  onltuvd 
the  case  resubmitted.  It  is  sufficient  an  this  to  snv 
that  it  does  not  appear  that  the  court  di  l  so  order,  ;• 
error  will  not  bo  presumed.  But  we  «are  <  the  op'nion  that 
this  provision  of  the  statute  can  not  be  extended  i  i  this  man- 
ner. The  demurrer  was  not  sustained,  and  such  a  tlismissal  is 
not  equivalent  to  an  order  sustaining  the  demurrer. 

6.  It  is  claimed  that  the  indictment  here  in  question  was 
returned  on  the  same  evidence  on  which  the  former  indictment 
was  found;  that  no  other  evidence  was  given  before  the  grand 
jury — and  it  is  urged  that  the  grand  jury  can  not  act  a  second 
time  on  the  same  evidence,  and  return  a  second  indictment 
after  the  first  is  dismissed.  The  point  is  not  well,  taken.  Tlie 
grand  jury  can,  under  such  circumstances,  return  a  second 
indictment  on  the  same  evidence.    1  I3ish.  Cr.  Proc.  §  870. 


STATE  V.  HULL.  427 

This  disposes  of  all  tlio  qnostiong  raised.  We  are  of  tlio 
opini«m  that  the  court  below  did  not  err  in  denying  the  motion 
to  set  aside  the  indictment,  and  the  cause  is  remanded  for  fur- 
ther ])roceodings. 

^oTE.—I(lentttj/  of  cane  cannot  be  disprovrd  by  grand  juror, —li^ihrnany 
of  mi'inbereof  thegrnnd  jury  that  found  the  indiotnicnt  Ib  inn(ln)iHBil)le  to 
ghow  the  character  of  tlie  evidence  tnk<>n  before  them  for  tlt«  purpose  of 
disproving  tlie  identity  of  the  ciwe  on  trial  witli  thut  on  whicli  the  grand 
jury  acted.    Newmanv.  State,  73  Miss.  124. 

S(im(!.— Arguments  between  mcinberH  of  the  jury,  and  their  deductions 
from  tlie  evidence,  can  not  be  shown  by  afHdavit  to  impeach  the  verdict. 
State  r.  Beste,  91  Iowa,  505. 

Qualification  of  grand  juror— Property  tax.— A  plea  in  abatement  which 
alleged  merely  that  two  of  the  grand  jurors  who  returned  the  indictment, 
and  who  were  drawn  from  a  certain  city,  had  not  within  a  year  next  preced- 
ing their  service,  paid  any  tax  on  their  property  in  such  city,  was  bad,  since 
one  need  not  have  paid  a  tax  on  one's  real  estate  within  the  year  next  pre- 
.  eding  the  time  of  voting  in  order  to  be  able  to  vote  on  a  tax  proposition,  and 
it  will  be  presumed  such  jurors  had  the  qualilications  required  by  Const, 
art.  2,  §  1.    State  v.  Rife,  18  R.  I.  478. 


State  v.  Hull. 


(18  R.  I.,  207.) 


1,  .-;. 

:     i 

1 

K 

P 

i- 

House  of  III  Fame:    Evidence  of  defendant's  reputation— Remarks  of 
counsel — Failure  of  defeiuhint  to  testify. 


1.  On  trial  of  an  indictment  charging  a  woman  with  keeping  a  house  of  ill 

fame,  where  no  evidence  for  defendant  is  offered,  it  is  error  to  permit 
the  State  to  introduce  evidence  as  to  her  reputation  for  chastity. 

2.  On  such  trial  the  attorney-general  stated  to  the  jury  that  it  wns  a  serious 

matter  that  she  did  not  answer  the  questions  that  were  asked  about  it; 
and  that  "  she  does  not  dare  to  put  in  her  testimony,  for  the  testimony 
for  the  defense  would  show  you,  more  plainly  than  the  testimony  that 
has  gone  in  on  the  side  of  the  State,  as  to  this  "  being  a  house  of  prostitu- 
tion. Held,  that,  though  the  use  of  this  language  is  disapproved,  it  is 
insufficient  ground  for  a  new  trial,  where  no  objection  was  made  at 
the  time,  and  no  request  was  made  to  charge  the  jury  not  to  consider  it. 

Clara  Hull  was  convicted  of  keeping  a  house  of  ill  fame,  and 
petitions  for  a  new  trial.     Petition  granted. 

Robert  W.  Btirhank,  Attorney-General,  for  the  State. 
Charles  11,  Page  and  Franklin  P.  Owen,  for  defendant. 


428 


AMERICAN  CRIMINAL  REPORTa 


TiLLiNGHAST,  J.  The  defendant,  who  was  found  guilty  in 
the  court  of  common  pleas,  at  the  September  term,  1891,  of 
keeping  and  maintaining  a  common  nuisance,  to  wit,  a  house 
of  ill  fame,  in  the  city  of  Providence,  now  petitions  this  court 
to  grant  her  a  new  trial  on  the  grounds :  First,  that  the  court 
below  erred  in  admitting  testimony  relating  to  the  reputation 
of  the  defendant;  and,  second,  that  certain  remarks  made  to 
the  jury  by  the  attorney-general,  in  his  argument,  were 
improper  and  prejudicial  to  the  rights  of  the  defendant. 

The  attorney-general  was  permitted  by  the  court,  against 
the  objection  of  the  defendant's  counsel,  to  ask  Thomas  D. 
Tyler,  a  witness  called  in  behalf  of  the  State,  the  following 
question,  namely :  "  What  is  the  reputation  of  Clara  Hull  ?" 
Said  Clara  Hull  was  the  defendant  in  said  case.  George  R. 
Waterman,  another  witness  called  in  behalf  of  the  State,  was 
asked  the  following  question,  viz. :  "  Do  you  know  what  is 
Clara  Hull's  reputation  for  chastity?"  Several  other  wit- 
nesses  called  by  the  attorney-general  were  each  asked  the 
question,  against  the  defendant's  objection :  "  What  is  tiie 
reputation  of  Clara  Hull  ? "  No  testimony  was  oflFered  at  the 
trial  in  behalf  of  the  defemlant. 

The  attorney -general  contends  that,  under  an  indictment 
for  keeping  and  maintaining  a  house  of  ill  fame,  evidence  of 
the  character  of  the  defendant  for  chastity,  as  well  as  that  of 
the  inmates  of  such  house,  and  of  those  who  frequent  the 
same,  is  admissible.  We  do  not  assent  to  this  proposition.  It 
is  a  fundamental  principle  of  the  criminal  law  that  the  char- 
acter of  a  defendant  can  not  be  impeached  or  attacked  by  the 
State  unless  he  puts  his  character  in  issue,  either  by  becoming 
a  witness  in  his  own  behalf,  or  by  offering  evidence  in  support 
of  his  character.  State  v.  Waldron,  16  R.  I.,  191,  195;  State  v. 
Ellwood,  17  R.  I.  763;  State  v.  Creson,  38  Mo.  372;  State  v.  Zapage, 
67  N.  H.  245,  290;  roung  v.  Com.,  6  Bush,  312,  310;  Jieg.  v. 
lioioton,  lOCoxCrim.  Cas.  2.5,30;  Greenl.  Ev.  [13th  Ed.]  §§2.5, 
26,  and  cases  cited),  excepting  that,  in  those  cases  where  the 
defendant's  character  is  put  in  issue  by  the  prosecution,  then 
the  prosecutor  ma}'^  examine  as  to  particular  facts;  for  it  is  im- 
possible, without  it,  to  prove  the  charge,  (1  Chit.  Crim.  Law. 
574,  575;  People  v.  White,  14  Wend.  11 1,  1 14;  Whart.  Crim.  Ev. 
[8th  Ed.]  §  64,  and  cases  cited  in  note  6.)  See,  also,  KnigUv. 
Siate,70  Ind.  375, 380;  Allen  v.  State,  15  Tex.  App.  320, 323;  Mor- 


STATE  V.  HULL. 


429 


rison  v.  State,  76  Ind.  335.  The  case  before  us  is  not  one  which 
comes  within  the  exception  just  mentioned,  as  would  that  of  one 
charged  with  being  a  "  notorious  thief  "  (  World  v.  /State,  50  Md. 
49),  or  of  being  "  guilty  of  notorious  adultery,"  under  a  statute 
making  such  an  oifense  indictable  {People  v.  Gates,  46  Cal. 
62-  Whart.  Crim.  Law,  §  1747).  The  defendant  is  charged 
with  keeping  a  house  of  ill  fame,  under  the  provisions  of  Pub. 
St.  R.  I.  c.  80,  §  I,  and  we  fail  to  see  that  her  individual  char- 
acter is  thereby  put  in  issue  any  more  than  it  would  have 
been  had  she  been  indicted  under  the  same  section  for  keeping 
and  maintaining  a  grog  shop  or  tippling  shop.  And,  under 
an  indictment  for  the  last  named  offense,  we  have  never  known 
of  evidence  being  admitted  as  to  the  character  of  the  defend- 
ant, unless  he  voluntarily  put  his  character  in  issue.  That  the 
"ill  fame"  or  bad  reputation  of  the  house  may  be  put  in  evi- 
dence in  a  case  like  the  one  before  us,  as  may  also  the  bad 
reputation  of  the  inmates,  and  of  those  who  frequent  the 
place,  there  seems  to  be  no  doubt.  Com.  v.  Gannett,  1  Allen 
7;  Com.  V.  Kimball,  7  Gray,  328,  330;  State  v.  Boardman,  64 
Me.  523;  State  v.  Lyon,  39  Iowa,  379;  McCain  v.  State,  57 
Ga.  390;  Beard  v.  State,  71  Md.  275;  State  v.  Tovoler,  13  R. 
I.  6GI,  665;  Com.  v.  Clark,  145  Mass.  251,  255,  Whart.  Crim. 
Ev.  §  261,  and  cases  cited.  But  to  go  beyond  this,  and  admit 
evidence  of  the  character  of  the  person  on  trial  for  the 
keeping  of  such  a  house,  is,  it  seems  to  us,  clearly  violative  of 
the  defendant's  rights.  In  State  v.  Hand,  7  Iowa,  411,  which 
was  an  indictment  for  keeping  a  house  of  ill  fame  resorted  to 
for  the  purpose  of  prostitution  and  lewdness,  the  court  in 
which  the  case  was  originall}'^  tried  instructed  the  jury  "  that  it 
was  not  necessary  for  the  State  to  prove  particular  facts  of 
lewdness  or  prostitution.  Common  reputation  as  to  the  char- 
acter of  the  defendant,  and  of  the  house  which  he  kept,  is 
admissible  to  prove  the  crinae."  The  defendant  was  found 
guilty,  and,  in  reversing  the  judgment,  the  supreme  court 
said :  "  The  indictment  is  against  the  keeper,  and  not  against 
the  house  as  a  nuisance.  To  convict,  the  house  must  be  shown 
to  be  a  house  of  ill  fame,  resorted  to  for  the  purpose  named, 
and  that  defendant  was  the  keeper  of  it.  Particular  acts  of 
lewdness  or  prostitution  need  not  be  proved.  The  counsel  for 
the  defendant  admit  this  much,  and  also  that  the  character  of 
the  house  may  be  fixed  or  shown  by  reputation  or  rumor. 


-H'' 


"1  v\r  i  ^ 


430 


AMERICAN  CRIMINAL  REPORTS. 


rf 


t 


The  objection  is  that  the  defendant  can  not  be  made  liable,  as 
the  keeper  of  such  a  house,  by  evidence  of  common  reputation 
as  to  his  character,  and  this  objection  we  believe  to  be  well 
taken.    The  bad  character  of  the  prisoner  is  entirely  imma- 
terial, in  the  first  instance,  in  determining  whether  he  was  the 
keeper  of  the  house;  and  that  he  was  the  keeper  must  be 
shown,  in  order  to  convict.    If  the  charge  was  against  the 
house,  then  its  fame — ill  fame — might  be  shown  by  proving 
among  other  things,  the  character  of  the  persons — the  defend- 
ant  among  others — resorting  there  from  time  to  time.    *    *  * 
Common  reputation  as  to  his  character,  however,  is  quite  a 
different  thing,  and  is  not  admissible  to  prove  the  crime  here 
charged."     In   Gamel  v.  State,  21  Tex.  App.  357,  the  prose- 
cution was  allowed  to  prove,  over  objection,  the  defendant's 
general  reputation  for  want  of  chastity.    In  reversing  the 
judgment  in  that  case  the  court  said :    "  The  indictment  is  for 
keeping  a  disorderly  house,  not  the  keeper's   character  for 
being  a  common  prostitute,  or  having  a  reputation  for  want  of 
chastity.     Such  evidence   was  not   admissible,  because  it  did 
not  tend  to  prove  the  issue  to  be  tried."     See  also    AJlen  v. 
State,  15  Tex.  App.  320.     The  attorney -general  has  referred  us 
to  several  cases  in  which  it  is  held  that  common  reputation  as 
to  the  character  of  the  defendant  is  admissible.     It  is  so  held 
in  State  v.  McDoioell,  Dud.  (S.  C.)  340;  but  the  court,  while 
stating  that  the  admissibility  of  such  evidence  "can  be  fully 
shown,"  cites  no  cases  in  support  thereof.     In  Sparks  v.  State, 
50  Ala.  82,  87,  the  court  says  that  "  accompanied  by  evidence 
(which  appears  to  have  been  given)  that  the  defendant  held 
herself  out  as  having  control  over,  managing,  and  keej)ing  the 
house,  and  that  it  was  frequented  by  persons  of  dissolute  hab- 
its, and  that  the  reputation  of  its  inmates  for  chastity  was  bad, 
it  was  permissible  to  show  that  the  character  of  the  defend- 
ant for  chastity  was  bad."     The  same  doctrine  seems  to  be 
held  in  Betts  v.  State,  93  Ind.  375,  although  not  necessary  to 
the  decision.     We  think,  however,  that  the  better  authorities, 
as  well  as  the  better  reason,  are  opposed  to  the  doctrine  of 
these  cases;  and  we  are  not,  therefore,  disposed  to  follow  them. 
The  case  of  People  v.  Saunders,  29  Mich.  209,  cited  by  tlio 
attorney-general,  simply  holds  that  under  section  7702  of  the 
Compiled  Laws  of  Michigan,  which  makes  the  letting  of  a 
dwelling  house,  "  knowing  that  the  lessee  intends  to  use  it  as 


STATE  V.  HULL. 


431 


a  place  of  resort  for  the  purpose  of  prostitution  and  lewdness," 
a  crime,  the  prosecutor  may  prove  that  the  lessee  is  a  woman 
of  ill  repute,  and  had  previously  kept  houses  of  ill  repute.  But 
it  does  not  hold  that  the  character  of  the  defendant  can  be 
attacked.  We  therefore  decide  that  it  was  error  to  permit  the 
iState  to  offer  evidence  relating  to  the  defendant's  character. 

The  language  used  by  the  attorney-general  in  his  argument 
to  the  jury,  of  which  thedefendant complains,  was  as  follows: 
"  Gentlemen,  of  course  it  is  not  proper  for  me  to  remark  upon 
the  failure  of  the  respondent  to  testify  in  this  case;  but  if  she 
stands  here,  as  a  defendant,  to  meet  these  charges,  it  is  her 
dutv  to  meet  not  by  her  own  testimony — it  is  her  privilege  to 
testify  or  not — but  she  can  put  on  other  witnesses  to  show 
that  her  house  is  the  moral  place,  the  pure  place,  that  she 
would  have  you  believe.  It  is  a  serious  matter  if  she  does  not 
answer  the  questions  that  are  asked  about  it.  She  could  prove 
that  it  is  all  right  by  others;  that  her  house  is  a  pure  place. 

*  *  *  She  does  not  dare  to  put  in  her  testimony;  for  the 
testimony  for  the  defense  would  show  you,  more  plainly  than 
the  testimony  that  has  gone  in  on  the  side  of  the  State,  as  to 
this  house  at  No.  20  Walker  street  being  a  house  of  prostitu- 
tion." While  we  do  not  think  that  the  use  of  this  language 
furnishes  sufficient  ground  for  a  new  trial,  as  the  attorney- 
general  expressly  stated  that  it  was  not  proper  for  him  to 
remark  upon  the  failure  of  the  defendant  to  testify,  yet,  as 
the  matter  has  been  brought  up  on  the  record,  and  formally 
urged  as  a  ground  for  new  trial,  we  can  do  no  less  than 
express  our  disapprobation  of  this  line  of  argument  on  the 
part  of  the  State.  It  was  the  defendant's  privilege,  as  well  as 
right,  not  only  to  remain  silent  herself,  but  also  not  to  offer 
any  testimony  in  her  defense,  but  to  rely  upon  the  presump- 
tion of  innocence  which  obtained  in  her  favor,  and  the  insuffi- 
ciency of  the  evidence  produced  by  the  State  to  convict  her. 
In  other  words,  the  State  was  bound  to  prove  her  guilty,  with- 
out any  assistance,  either  active  or  passive,  on  her  part.  To 
assume  in  argument,  therefore,  that  testimony  for  the  defense, 
if  offered,  would  show,  more  plainly  than  that  put  in  by  the 
State,  that  the  defendant  was  guilty,  was  certainly  going  some- 
what beyond  the  limit  of  legitimate  inference.  But,  in  order 
to  constitute  said  objectionable  rcirarks  a  ground  for  new 
trial  in  any  event,  it  was  the  defendant's  duty  to  have  objected 


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432 


AMERICAN  CRIMINAL  REPORTS 


thereto  at  the  time,  and  to  have  requested  the  court  to  charge 
the  jury  not  to  considei-  them,  which,  so  far  as  the  record 
shows,  she  failed  to  do.  Young  v.  State,  19  Tex,  App.  536- 
Comer  v.  State,  25  Tex.  Cr.  App.  - — ;  16  Amer.  &  Eng.  Enc. 
Law,  627,  and  cases  in  note  1,  p.  528.  For  the  error  first 
above  specified,  we  grant  the  defendant  a  new  trial.  Petition 
granted. 


Allison  v.  United  States. 


(160  U.  S.  203.) 


'■■M 


Murder  :    Witness— Rights  and  privileges  of  accused  when  offered  in  hia 
otvn  behalf— Improper  remarks  of  trial  judge— Self -defense. 

1.  When  a  person  indicted  for  the  commission  of  murder,  offers  himself  at 

the  trial  aa  a  witness  on  his  own  behalf,  under  the  provisions  of  the  act 
of  Marth  16,  1878,  c.  37,  20  Stat.  30,  the  policy  of  the  enactment 
should  not  be  defeated  by  hostile  intimations  of  the  trial  judge. 

2.  The  defendant  in  this  case  having  offered  himself  as  a  witness  in  his 

own  behalf,  and  having  testified  to  circumstances  which  tended  to 
show  that  the  killing  was  done  in  self-defense,  the  court  charged  the 
jury:  "You  must  have  something  more  tangible,  more  real,  more 
certain,  than  that  which  is  a  simple  declaration  of  the  party  who 
Blays,  made  in  your  presence  by  him  as  a  witness,  when  he  is  con- 
fronted with  a  charge  of  murder.  All  men  would  say  that."  Held, 
that  this  was  reversible  error. 

8.  Other  statements  made  by  the  court  to  the  jury  are  held  to  seriously 
trench  on  that  untrammelled  determination  of  the  facts  by  a  jury  to 
which  pai'ties  accused  of  the  commission  of  crime  are  entitled. 

4.  What  is,  or  what  is  not,  an  overt  demonstration  of  violence  sufficient  to 
justify  a  resistance  which  ends  in  the  death  of  the  party  making  the 
demonstration  varies  with  the  circumstances;  and  it  is  for  the  jury, 
and  not  for  the  judge,  passing  upon  the  weight  and  effect  of  the  evi- 
dence, to  determine  whether  the  circumstances  justified  instant  action, 
because  of  reasonable  apprehension  of  danger. 

6.  Where  the  charge  of  the  trial  judge  takes  the  form  of  animated  argu- 
ment, the  liability  is  great  that  tlie  propositions  of  law  may  become 
interrupted  by  digression,  and  be  so  intermingled  with  references 
springing  from  forensic  ardor,  that  the  jury  will  be  left  without  proper 
instructions,  their  province  of  dealing  with  the  facts  invaded,  and 
errors  intervene. 

Error  to  the  Circuit  Court  of  the  United  States  for  the 
Western  District  of  Arkansas. 


W   ' 


ALLISON  V.  UNITED  STATES. 


433 


John  Allison,  some  twenty  years  old,  was  indicted  for  the 
murder  of  his  father,  William  Allison,  on  the  fifth  day  of 
January,  1895,  at  the  Cherokee  Nation,  in  the  Indian  country, 
in  the  AVestern  District  of  Arkansas,  found  guilty  by  a  jury, 
under  the  instructions  of  the  court,  and  sentenced  to  be  hanged; 
whereupon  he  sued  out  this  writ  of  error. 

The  evidence  tended  to  show  that  the  Allisons  resided,  up 
to  the  year  1893,  in  the  State  of  Washington;  that  the  parents 
had  been  divorced;  that  the  father  had  repeatedly  threatened 
the  lives  of  the  members  of  his  family,  and  for  an  assault  upon 
one  of  his  sons  and  his  son-in-law,  by  shooting  at  them  with  a 
pistol,  had  been  sent  to  the  penitentiary  for  a  year;  and  that 
thereupon  the  family  left  the  State  of  Washington  and  came 
to  the  Indian  country.  In  about  a  year  the  father  appeared, 
first  at  Hot  Springs,  Arkansas,  where  one  daughter  had  located, 
and  then  in  the  neighborhood  of  the  other  members  of  the 
family,  in  the  Indian  country,  and  at  once  began  threatening 
the  lives  of  the  entire  family,  and  particularly  that  of  his  son 
John.  A  great  variety  of  vindictive  threats  by  the  deceased 
in  Washington,  at  Hot  Springs,  and  in  the  Indian  country  was 
testified  to. 

Evidence  was  also  adduced  that  on  one  occasion  he  came  to 
the  lionse  where  the  mother  and  her  children  were  living  and 
demanded  to  see  the  children,  who  (except  John  and  one  whom 
he  had  seen)  were  not  at  home,  and  he  then  wished  to  see 
their  mother,  who  objected  to  meeting  him;  that  he  persisted; 
whereupon  his  son  John,  who  had  a  gun  in  his  hand,  told  him 
he  must  leave,  and  the  father  dared  John  to  come  out,  and  he 
would  fight  him  outside;  but  John  answered  that  he  did  not 
want  any  trouble  with  him — only  wanted  him  to  stay  away 
from  there;  and  the  deceased  replied  :  "  God  damn  you;"  that 
he  subsequently  told  his  son-in-law  to  tell  John  Allison  "  that 
he  would  blow  his  God  damned  brains  out  the  first  time  he 
seen  him;  told  him  to  tell  him  he  would  kill  his  mother  and 
the  entire  family; "  that  the  day  after  this  occurrence  John 
Allison  and  his  mother  made  an  affidavit  to  get  a  peace  war- 
rant for  William  Allison,  and  on  that  occasion  John  told  the 
prosecuting  attorney  that  the  old  man  threatened  his  life,  and 
he  thought  he  was  in  danger,  and  asked  him  if  he  killed  the 
old  man  what  would  be  done  with  him;  and  he  replied  that, 
"  if  the  old  man  came  to  his  house  and  raised  a  racket  and 


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434 


AMERICAN  (^IMINAL  REPORTS. 


ii 


tried  to  carry  out  his  threats,  that  he  told  me  he  had  made  on 
him,  I  told  him  he  would  be  justified  in  doing  it,"  but  tliut  he 
must  not  go ''  hunting  the  old  man  up  and  trying  to  kill  hini; " 
and  that  John  said,  "  I  will  not  bother  him;  if  he  will  let  ine 
alone,  I  will  let  him  alone; "  and  that  this  was  five  or  six  days 
before  the  killing. 

The  evidence  further  tended  to  show  that  the  deceased 
had  been  in  the  habit  of  carrying  a  pistol;  that  he  stated 
that  he  had  one;  that  on  New  Year's  day  he  threatonod 
one  of  the  witnesses  with  that  weapon,  and  another  witness 
testified  to  catching  a  glimpse  of  it  once  when  he  put  his  hand 
around  to  his  hip  pocket;  but  that  he  had  no  pistol  on  liiin 
when  he  was  killed.  The  deceased  was  staying  at  the  house 
of  one  Farris,  and  a  witness  testified  in  rebuttal  to  conversing 
with  John  when  he  Avas  "  warming  "  on  one  occasion  at  liie 
barn — presumably  Farris'  barn — and  asking  him  why  he  did 
not  go  up  to  the  house,  and  he  said  he  did  not  want  to  go  up 
there;  that  he  was  afraid  he  and  his  father  would  hjive  some 
trouble;  that  he  was  afraid  his  father  would  hurt  him;  and 
that  he  was  going  to  kill  him  just  as  quick  as  he  caught  him 
away  from  tlie  house. 

As  to  the  circumstances  immediately  surrounding  the  hom- 
icide, the  defendant  testified  that  he  and  a  man  by  the  name 
of  Rucker  had  killed  a  deer  near  Rucker's  the  day  before,  and 
that  he  had  promised  Rucker  to  come  back  the  next  day  to 
hunt  for  others,  and  was  riding  by  Farris'  place,  which  was 
on  the  way  to  Rucker's,  with  his  gun  in  his  hand,  on  that 
errand,  on  the  morning  of  January  5th,  when  he  saw  a  person 
whom  he  took  to  be  his  brother  Jasper  up  at  Farris'  house; 
that  this  person  turned  out  to  be  Farris  with  his  brother's 
coat  on;  but  he  stopjiedat  the  stable  thinking  that  his  brother 
would  come  down  that  wav,  as  he  had  learned  from  his  sist(  r 
that  his  brother  was  to  be  at  the  place  at  that  time  for  the  pur- 
pose of  removing  some  household  goods;  that  he  did  not  go 
up  to  the  house  because  he  did  not  want  to  meet  his  father; 
that  shortly  after  ho  arrived  at  the  barn  his  father  came 
through  the  gate,  and  he  stepped  to  one  side  to  let  him  go 
into  the  barn  if  he  wished  to,  but  deceased  did  not  go  towards 
the  door,  came  straight  towards  him,  and  when  he  got  a  few 
feet  from  him  said:  "  You  have  got  it,  have  3'ou  ?"  and  threw 
his  hand  back  as  if  he  was  going  to  get  a  pistol;  "  made  a  dein- 


;  n 


ALLISON  V.  UNITED  STATES. 


435 


onstration  that  way,"  and  that  this  demonstration,  and  the 
threats  he  had  made,  led  defendant  to  believe  that  he  was 
<Toing  to  draw  a  pistol,  and  he  fired;  that  he  fired  three  shots, 
but  none  after  the  deceased  fell.  Defendant  was  corroborated 
by  Rucker  and  others  in  many  particulars,  but  contradicted 
by  the  government's  witnesses  in  respect  of  firing  after  his 
father  was  down,  they  testifying  that  he  fell  at  the  first  shot. 

Ilr.  William  M.  Cravens,  for  plaintifT  in  error. 
Mr.  AssistaiU  Attorney  General  Whitney^  for  defendants  in 
error. 


and 


Mr.  Chief  Justice  Fuller,  after  stating  the  case,  delivered 
the  opinion  of  the  court. 

It  was  claimed  on  behalf  of  the  defendant,  that  the  homi- 
cide was  excusable  because  committed  in  self-defense,  in  that 
his  life  having  been  repeatedly  threatened  by  deceased,  when 
he  saw  him  on  this  occasion  moving  his  hand  as  if  to  take  a 
pistol  from  his  hip  pocket,  he  believed,  and  as  a  prudent  man 
might  reasonably  have  believed,  at  that  time  and  under  those 
circumstances,  that  he  was  in  imminent  and  deadly  peril 
which  could  only  be  averted  by  the  course  he  pursued;  or  that 
at  the  most,  he  could  only  be  found  guilty  of  manslaughter 
for  acting  under  an  unreasonable  access  of  fear,  but  without 
malice. 

The  threats  were  conceded,  and  there  was  evidence  that  the 
deceased  was  in  the  h.abit  of  carrying  a  pistol;  that  he  had 
recently  carried  one  in  his  hip  pocket;  that  he  had  sent  word  to 
defendant  that  he  should  kill  him  on  sight;  that  defendant 
had  started  on  a  hunting  expedition  that  morning,  and  that 
his  stopping  at  Farris'  place  was  accidental,  but  the  facts  that 
be  at  first  stepped  away  from  his  father,  and  that  the  latter 
advanced  on  him  and  made  the  threatening  demonstration  as 
if  to  draw  a  pistol,  which  the  defendant  knew  he  was  accus- 
tomed to  have  upon  him,  apparently  depended  on  defendant's 
testimony  alone.  The  question  for  the  jury  to  determine,  from 
'all  the  facts  and  circumstances  adduced  in  evidence,  was  the 
reasonableness  of  the  belief,  or  fear,  of  the  existence  of  such 
peril  of  death  or  great  bodily  harm  as  would  excuse  the  kill- 
ing. And  it  was  for  the  jury  to  test  the  credibility  of  the 
defendant  as  a  witness,  giving  his  testimony  such  weight  under 


;  *,'t- 


' !.  ■  ^' 


,-i:J 


436 


AMERICAN  CRIMINAL  REPORTS. 


1 


all  the  circumstances  as  they  thought  it  entitled  to,  as  in  tlio 
instance  of  other  witnesses,  uninfluenced  by  instructions  wliich 
might  operate  to  strip  him  of  the  competency  accorded  by  the 
law. 

We  repeat  what  was  said  by  Mr.  Justice  Shiras,  speaking 
for  the  court,  in  Ilieks  v.  United  States,  150  U.  S.  442,  452: 

*'  It  is  not  unusual  to  warn  juries  that  they  should  be  care- 
ful in  giving  effect  to  the  testimony  of  accomplices,  and, 
perhaps,  a  judge  can  not  be  considered  as  going  out  of  Lis  prov- 
ince in  giving  similar  caution  as  to  the  testimony  of  the 
accused  person.  Still,  it  must  be  remembered,  that  men  may 
testify  truthfully,  although  their  lives  hang  in  the  balance. 
and  that  the  law,  in  its  wisdom,  has  provided  that  the  accused 
shall  have  the  right  to  testify  in  his  own  behalf.  Such  a 
privilege  would  be  a  vain  one  if  the  judge,  to  whose  lii^hUst 
word  the  jury  properly  enough  give  a  great  weight,  slunild 
intimate  that  the  dreadful  condition  in  which  the  accused  linds 
himself  should  deprive  his  testimony  of  probability.  The  wise 
and  humane  provision  of  the  law  is,  that '  tiie  jierson  charged 
shall  at  his  own  request,  and  not  otherwise,  be  a  competent 
witness.'  The  policy  of  this  enactment  should  not  be  defeated 
by  hostile  intimations  of  the  trial  judge,  whose  duty  it  is  to 
give  reasonable  effect  and  force  to  the  law."  Similar  views 
have  been  expressed  in  many  cases  in  the  state  courts. 

In  Commonwealth  v.  Wright,  107  Mass.  403,  it  was  held  that 
there  was  no  presumption  either  way  as  to  the  truthfulness  of 
a  defendant's  testimony  in  a  criminal  case,  and  that  his  testi- 
mony is  to  be  considered  and  weighed  by  the  jury,  taking  all 
the  circumstances  of  the  case  and  all  the  other  evidence  into 
consideration,  and  giving  such  weight  to  the  testimony  as  in 
their  judgment  it  ought  to  have. 

"It  can  not,"  observed  Scholfield,  J.,  in  Chamhers  v.  The 
People,  105  Illinois,  409,  "  be  true  that  the  evidence  given  by 
the  defendant  charged  with  crime  is  not  to  be  treated  the  same 
as  the  evidence  of  other  witnesses.  It  could  not  even  be  true, 
as  a  universal  proposition,  that,  as  matter  of  law,  it  is  not  to 
have  the  same  effect  as  the  evidence  of  other  witnesses.  j\rany 
times  it  certainly  can  not  have  that  effect,  but  there  are  times 
when  it  can  and  should,  and  of  this  the  jury  are  made  the 
judges." 


ALLISON  V.  UNITED  STATES. 


437 


And  SCO  Greer  v.  State,  53  Ind.  420;  Veatch  v.  State,  56  Ind. 
5S4;  Bucldey  v.  State,  62  Miss.  705;  State  v.  Johnson,  16  Nev.  36. 

Among  the  errors  assigned  in  the  present  case  was  one  to  so 
mucli  of  tlio  charge  as  is  given  below  in  italics,  in  respect  of 
which  a  sutiicieut  exception  was  preserved.  The  trial  judge 
said : 

"  You  have  heard  in  argument  here,  incidentally  dropped,  no 
doubt,  because  these  things  have  been  repeated  here  so  often 
in  this  court,  that  every  child  knows  what  the  law  of  self- 
defense  is,  that  if  a  man  thinks  he  has  a  right  to  slay  he  can 
slay.  That  is  a  great  misapprehension  of  what  this  proposition 
of  the  law  is  and  what  it  means.  If  that  was  the  case  how 
many  men,  when  they  are  arraigned  for  the  killing  of  a  human 
being,  would  not  assert  that  they  thought  the}'^  had  a  right  to 
kill  2  What  a  jierversion  of  this  protection  agency  called  the 
law  of  the  land  this  would  be  1  No,  that  is  not  the  law.  It 
must  be  shown  by  the  evidence  that  the  party  who  was  slain, 
was  at  the  time  doing  something  that  would  satisfy  a  reason- 
able man,  situated  as  was  the  defendant,  that  the  deceased, 
William  Allison,  then  and  there  was  about  to  do  that  which 
would  destroy  the  life  of  the  defendant,  and  that  ho  could  not 
prevent  it  except  by  doing  as  he  did  do.  The  question  as 
to  whether  that  is  the  date  of  ease  or  not,  is  a  question  that 
is  to  he  jinalbj  passed  iqxm  ly  the  juries  of  the  country, 
and  hy  you  in  this  ease,  and  you  must  have  something  tangi- 
hie,  vwre  real,  more  certain,  than  that  which  is  a  simple  declara- 
tion of  the  party  who  shtys,  made  m  your  presence  hy  hint 
as  a  witness,  when  he  is  confronted  xoith  a  charge  of  mur- 
der. All  men  would  say  that.  No  man  created  would  say 
otherwise  lohen  confronted  by  such  circuinstances,  and  the  Juries, 
as  a  matter  of  fact,  xcould  have  nothing  to  do  hut  to  record  the 
finding  which  -was  willed  or  estahlis/ted  hy  the  declaration  of  the 
party  who  did  the  killing.^^ 

In  this  there  was  error.  While  the  trial  judge  may  not  have 
intended  to  be  understood  that  the  defendant  could  not  prove 
his  defense  by  his  own  testimony,  and  had  it  in  his  mind  sim- 
ply to  warn  the  jury  that  they  should  not  rely  on  the  defend- 
ant's opinion  that  his  conduct  was  justifiable,  but  on  the  facts, 
or  what  reasonably  appeared  to  him  to  be  such,  we  think  these 
remarks  had  a  much  wider  scope,  and  must  have  been  so  under- 
stood by  the  jury.    The  "  state  of  case  "  put  to  the  jury  was 


!'■! 


m 


f  , 


:■'>■ 


' '   '  'A   :. 


v^rrwr^ 


W 


438 


AMERICAN  CRIMINAL  REPORTS. 


kH      ?- 


s  r 


!"i:.  It  1 


\         tVg 


whether  William  Allison  was  at  the  time  doin^somethinfj  that 
"Would  satisfy  a  reasonable  man,  situated  as  defendant  was,  that 
ho  was  about  to  do  what  would  destroy  defendant's  life,  juid 
which  defendant  could  not  prevent  except  by  doing  as  ho  did; 
and  the  question  as  to  the  existence  of  that  state  of  tase  was 
required  by  tlie  instruction  to  be  passed  on  by  the  jury  on 
somethintj  more  than  defendant's  declaration,  which,  it  was 
stated,  would  certainly  be  made  by  any  man  created  when 
confronted  with  a  charge  of  murder. 

Defendant  had  testillod  to  the  facts  upon  which  he  based  his 
belief  that  he  was  in  peril,  and  it  was  for  the  jury  tosjiy  fruiu 
the  evidence  whether  the  facts  as  he  stated  them  actually  or 
apparently  existed,  and  whether  the  homicide  could,  therefore, 
bo  excused  either  wholly  or  in  part.  And  if  the  jury  regankcl 
the  remarks  of  the  court  as  applicable  generally  to  defendant's 
testimon}',  then  defendant  was  practically  deprived  of  its 
benefit,  and  the  statute  enabling  him  to  testify  was  rendered 
unavailing.  In  our  opinion  tlio  liability  of  the  jury  to  tlins 
understand  these  observations  was  so  great  that  their  utter- 
ance constitutes  reversible  error. 

Nor  was  this  error  obviated  by  what,  some  time  after — the 
intervening  |K)rtion  of  the  charge  occupies  six  closely  printed 
pages — was  said  by  the  trial  judge,  as  follows :  "  The  defend- 
ant has  gone  upon  the  stand  and  he  has  made  his  statement. 
See  if  it  is  in  harmony  with  the  statements  of  witnesses  you 
find  to  be  reliable.  If  they  are  not,  they  stand  before  you  as 
contradicted.  If  they  are,  they  stand  before  you  as  strength- 
ened as  you  may  attach  credit  to  the  corroborating  facts.  In 
passing  upon  his  evidence  you  are  necessarily  to  consider  his 
interest  in  the  result  of  this  trial,  in  the  result  of  this  case. 
lie  is  related  to  the  case  more  intimately  than  anybody  else, 
and  you  are  to  apply  the  principle  of  the  law  that  is  laid  down 
everywhere  in  all  civilized  countries,  commanding  3'ou  to  look 
at  a  man's  statements  in  the  light  of  the  interest  that  he  has 
in  the  case.  There  is  no  otlor  of  sanctity  thrown  around  the 
statements  of  the  defendant  as  a  witness,  as  is  sometimes  su\>- 
posed,  because  he  is  charged  with  crime.  You  are  to  viowiiis 
statements  in  the  light  of  their  consistency,  their  reasonable- 
ness and  their  probability,  the  same  as  the  statements  of  any 
other  witness,  and  you  are  to  look  at  them  in  the  light  of  tiie 
interest  he  has  in  the  result  of  the  case." 


ALLISON  V.  UNITED  STATES. 


439 


If  this  could  be,  in  any  aspect,  treated  as  a  modification  of 
the  previous  assertions  of  the  court,  it  was  too  far  separated 
from  tliat  connection  to  permit  us  to  attribute  that  operation 
to  it,  and,  moreover,  it  was  in  itself  erroneous.  As  a  witness, 
a  defendant  is  no  more  to  be  visited  with  condemnation  than 
he  is  to  be  chithed  with  sanctity,  simply  because  ho  is  under 
accusation,  and  there  is  no  presumption  of  law  in  favor  of  or 
against  his  truthfulness. 

Exception  was  taken,  not  with  much  precision,  but,  we  are 
disjjosed  to  hold,  sufficiently  to  save  the  point,  to  the  follow- 
in"  instruction,  given  in  discussing  the  question  of  malice 
aforethought: 

"  Now,  of  course,  j^ou  are  to  distinguish  (and  I  have  to  be 
particular  upon  this  point;  I  have  my  reasons  for  it,  and  it  is 
not  necessary  to  name  to  you  what  they  are)  between  a  case 
where  a  man  prepares  simply  to  defend  himself  and  keeps 
himself  in  the  right  in  that  defense,  and  a  state  of  case  where 
he  ])repares  himself  recklessly,  wantonly,  and  without  just 
cause  to  take  the  life  of  another.  If  he  prepares  himself  in 
the  latter  way,  a.id  he  is  on  the  lookout  for  the  man  he  has 
thus  prepared  himself  to  kill,  and  he  kills  him  upon  sight, 
tliat  is  murder,  and  it  would  shock  humanity  or  even  the  most 
technical  and  hair-s])Jitting  court  to  decide  anything  else. 
Tliat  can  be  nothing  else  but  murder.  If  he  is  in  the  right — 
if  he  is  in  the  right  at  the  time  of  the  killing — and  simply 
prepared  himself  to  defend  his  own  life,  that  is  preparation 
not  to  take  the  life  of  another,  but  preparation  to  defend  him- 
self. That  is  the  distinction,  a  distinction  that  is  clear  and 
comprehensive."  And  also  to  this  in  reference  to  the  exercise 
of  the  right  of  self-defense : 

"  The  first  proposition  is  as  follows :  '  A  man  who,  in  the 
lawful  pursuit  of  his  business ' — I  will  tell  you  after  a  while 
what  is  meant  by  that.  I  will  tell  you,  in  short;  in  this  con- 
nection, it  means  that  the  man  is  doing  at  the  time  just  exactly 
what  he  had  a  right  to  do  under  the  law.  When  so  situated 
— '  is  attacked  by  another  under  circumstances  which  denote 
an  intention  to  take  away  his  life,  or  to  do  him  some  enor- 
mous bodily  harm,  may  lawfully  kill  the  assailant,  provided 
he  uses  all  the  means  in  his  power,  otherwise,  to  save  his  own 
life  or  to  prevent  the  intended  harm — such  as  retreating  as 
far  as  he  can,  or  disabling  his  adversary  without  killing  him, 


If 


•  ( . 


440 


AMERICAN  CRIMINAL  REPORTS. 


'H 


"I 


N:|li||i::| 


if  it  bo  in  liis  power.'  Now,  that  means  by  its  very  langtiao-o 
tliat  the  party  was  in  the  right  at  the  time.  If  ho  was  hunt, 
ing  up  his  father  for  the  purpose  of  getting  an  ojjportunity  to 
slay  him  without  just  cause  and  in  the  absence  of  legal  i)r<)vo. 
cation,  he  was  not  in  the  right,  and  the  consequences  woulil 
be  that  he  would  bo  deprived  of  tho  law  of  self-defenvse,  as  vou 
will  learn  ju'esontly,  when  such  a  condition  as  that  exists. 
Now,  of  course,  in  this  connection — and  I  am  thus  j)arti(iilar 
again  for  certain  reasons — you  are  to  draw  tho  distinction 
between  a  state  of  case  where  a  man  arms  himscilf,  where 
there  is  ill  will,  or  grudge,  or  spite,  or  animosit}',  existing,  and 
he  hunts  up  his  adversary  and  slays  him,  and  the  state  of  case 
Avhero  he  simply  arms  himself  for  self-defense.  lie  has  a  right 
to  do  the  latter  as  long  as  ho  is  in  the  right,  but  he  has  no  right 
to  do  the  former,  and  if  he  does  the  former,  and  slays  hocuuse 
of  that  condition  he  is  guilty  of  murder." 

"Wo  are  of  opinion  that  defendant's  objections  to  these 
portions  of  the  charge  are  well  founded.  The  hyi)otiiosis 
upon  which  the  defense  rested  on  tho  trial  was,  that  John 
Allison  had  a  gun  with  him  on  the  morning  of  the  tragedy, 
in  order  to  hunt  deer,  and  that  his  st()p])ing  at  Farris'  phice, 
which  was  on  his  way  to  llucker's,  was  accidental.  His  testi- 
mony to  this  (jITect  was  corroborated,  and  was  not  contradicted. 

Justice  and  tho  law  demands  that,  so  far  as  reference  was 
made  to  the  evidence,  that  which  was  favorable  to  the  accused 
sliould  not  bo  excluded.  His  guilt  or  innocence  turned  on  a 
narrow  hinge,  and  great  caution  should  have  been  used  not  to 
complicate  and  confuse  the  issue.  Hut  the  charge  ahove 
quoted,  ignored  the  evidence  tending  to  show  that  defendant 
had  not  armed  himself  at  all,  but  had  a  gun  with  iiim  for  pur- 
poses of  sport,  and  that  his  halt  at  Farris'  had  no  connection 
whatever  with  the  deceased;  and  invited  tho  jury  to  contem- 
plate tho  spectacle  of  a  son  hunting  up  his  father  witli  tlio 
deliberately  preconceived  intention  of  murdering  him,  unre- 
lieved by  allusion  to  defensive  matter  which  threw  a  different 
light  on  the  transaction. 

n  defendant  were  "  in  tho  right  at  the  time  of  tho  killing," 
tho  inquiry  as  to  how  he  came  to  be  armed  was  immaterial, 
or,  at  least,  embraced  by  that  expression.  If  there  were  evi- 
dence, and  as  to  this  tho  record  permits  no  doubt,  tending  to 
establish  that  defendant  carried  his  gun  that  morning  for  no 


ALLISON  V.  UNITED  STATES. 


441 


place. 


purpose  of  olT(!nso  or  dofenso,  then  this  disquisition  of  tho 
court  was  calcuhito<l  to  <hirken  tho  lij^ht  cast  on  tho  homicitlo 
by  tho  attoiiihint  circuinstancos  as  dcl'ondant  chiimod  them  to 
be;  and  of  this  ho  had  just  cause  to  comphiin,  oven  though 
there  wore  conipotent  evidence  in<licating  that  l»o  luid  har- 
bored designs  against  liis  fatiier's  life,  as  frequently  intimated 
by  the  court — intiuuitions  which  we  fear  seriously  trenched  on 
that  untrammeled  determinaticm  of  tho  facts  by  a  jury  to 
which  i)arties  accused  are  entitled. 

As  will  have  been  seen,  tho  theory  of  tho  dofenso  was  that 
defendant  was  in  terror  of  his  life,l)y  reason  of  tho  threats  of  de- 
ceased to  take  it,  and  was,  therefore,  led  to  interpret  the  alleged 
menacing  action  of  deceased  as  demonstrating  an  intenti(m 
then  and  there  to  carry  those  threats  into  execution.  Tho 
bearing  of  the  ])rovious  threats  then,  was  very  important,  and 
in  relation  co  thorn,  the  trial  judge  admonished  the  jury  as 
follows : 

"Now,  then,  these  mitigating  facts  which  reduce  tho  killing 
so  as  to  make  it  manslaughter,  can  not  bo  ])revious  acts  of 
violence  exerted  at  some  other  time,  and,  so  far  in  tho  past  as 
that  there  was  time  for  the  blood  to  cool,  or  the  party  to 
think,  or  to  dolil)erate — it  can  not  bo  an  act  of  that  kind  that 
can  be  taken  into  account  to  mitigate  tho  crime.  Nor  can 
they  exist  in  the  shape  of  previous  threats,  made  at  some 
other  time  than  the  killing,  or,  if  you  please,  if  tho  proof  had 
shown  that  they  were  made  at  the  time  of  the  killing,  because 
threats  of  violence,  mere  threats  of  that  character,  can  not  bo 
used  to  justify  nor  to  mitigate  a  killing,  unless  they  are  coupled 
with  some  other  condition  which  I  will  give  vou  in  connec- 
tion  with  the  law  given  you  showing  the  figure  that  threats 
cut  in  a  case.  *  *  *  If  threats  were  made  previous  to  the 
time  of  the  killing,  and  they  were  not  coupled  with  tho  con- 
dition that  they  may  bo  used  to  illustrate,  as  I  will  give  it  to 
you  presently,  and  the  party  kills  because  of  those  threats, 
that  is  evidence  of  spite.,  that  is  evidence  of  grudge,  that  is 
evidence  showing  that  he  kills  because  of  ill  will  and  special 
animosity  existing  upon  his  part  against  tho  party  who  is 
slain." 

After  much  intervening  discussion  on  other  matters,  the 
subject  was  returned  to  thus : 

"  Vou  want  to  know,  of  course,  what  figure  threats  cut. 


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4:12 


AMERICAN  CRIMINAL  REPORTS. 


Evidence  has  been  offered  liere  of  tl'.reats  made  by  the  deceased. 
You  want  to  know  what  office  they  perform  in  the  case,  how 
you  are  to  view  them,  whetlior  you  are  to  say  that  the  law 
autiiorizes  you  to  say  that  if  a  man  has  been  threatened 
at  some  time  previous  to  the  killing,  and  that  he  kills 
because  of  these  threats,  or  he  kills  when  no  overt  demon, 
stration  of  violence,  really  or  a))|)arently,  is  being  made  bv 
the  party  slain,  at  the  time,  whether  or  not  those  throats 
can  be  taken  into  consideration  by  you  to  excuse  that  killino- 
or  to  mitigate  it.  *  *  *  Now,  you  see,  they  do  not  cut 
any  office  at  all  in  favor  of  a  defendant  uidess  at  the  time 
in  this  case,  his  father  was  doing  some  act,  making  some  actual 
attem})t,  to  execute  the  threat,  as  shown  by  some  act  or  dom- 
onstration  at  the  time  of  the  killing,  taken  in  connection  with  the 
threat,  that  would  induce  a  reasonable  belief  upon  the  ])ai't  of 
the  slayer  that  it  was  necessary  to  dejjrive  his  lather  of  life  in 
order  to  save  his  own  or  ])revent  some  felony  upon  his  {KTson. 
That  is  the  law,  stated  i)lainly,  as  to  the  office  of  connnuni- 
cat(Hl  threats.  *  *  *  Xf  he  (the  deceased)  was  doing  some 
act  or  nudcing  some  demonstration  that  really  or  ai)i)aiviiily 
was  jf  a  character  that  indicated  a  design  to  take  lil'e,  then 
the  defendant  could  couple  previous  threats  made  with  the 
act  or  lio'uonstration.  Now,  the  act  or  demonstration  must 
liave  gone  sufficiently  far  to  show  a  reasonable  ])uriK)se  or  to 
induce  a  reasonable  belief,  when  coupled  with  thi-eats,  uiidor 
the  circumstances,  that  that  was  William  Allison's  ])ur|)ose  at 
the  time.  It  must  have  gone  to  that  extent.  It  must  have 
gone  sufficiently  far,  the  overt  act  done  by  him,  as  to  induce  a 
reasonable  belief,  when  coupled  witli  threats,  that  that  was 
his  purpose.  *  *  *  Now  you  see  that  no  matter  how  many 
threats  William  Allison  may  have  made  against  his  fauiily, 
and  no  matter  to  what  extent  this  family  broil  had  gone,  this 
defendant,  because  of  threats  of  that  character,  could  not  hunt 
him  up  and  shoot  him  down  because  of  those  threats. 

If  that  was  the  state  of  case  the  threats  can  not  be  considered 
in  his  favor,  but  the}'  may  be  considered  to  show  that  he  killed 
him  l)ecause  of  malice,  because  of  malice  aforethought  existing, 
because  of  a  spirit  of  spite,  or  ill  will,  or  grudge,  that  he  was 
secdving  to  satisfy  by  that  sort  of  attack." 

Defendant  excepted  to  so  much  of  these  instructions  as 


lotions  as 


ALLISON  V.  UNITED  STATES. 


443 


ruled  that  threats  to  take  his  life  mit;ht  be  treated  as  coiisti- 
tutin"-  evidence  of  spite,  or  ill  will,  or  grudge  on  his  ])art. 

In  Wi(j(jlns  V.  People,  93  U.  S.  4G5,  it  was  held  that,  on  a 
trial  tor  a  homicide  commicted  in  an  encounter,  where  tiie 
question  as  to  which  of  the  parties  commenced  the  attack  is  in 
doulit,  it  is  competent  to  prove  threats  of  violence  against 
defendant  made  by  deceased,  though  not  brought  to  defend- 
ant's knowledge,  for  the  evidence,  though  not  relevant  to  show 
the  quo  aiiimo  of  the  defendant,  would  be  relevant,  under  such 
circumstances,  to  show  that  at  the  time  of  the  meeting 
deceased  was  seeking  defendant's  life.  Wharton,  Crim.  Ev., 
§  757;  Stol'es  v.  People,  53  N.  Y.  174;  Camphell  v.  People, 
10  Illinois,  17;  People  v.  Seogtjins,  37  California,  076;  liobn'ts 
V.  State,  68  Alabama,  156.  It  is  from  the  dissenting  opinion  in 
Wiggins'  case  that  the  trial  judge  indulged  in  quotation  in 
connection  with  the  undisputed  ])roposition  that  a  person's 
life  is  not  to  be  taken  simply  because  he  has  made  threats. 

Here  the  threats  were  recent  and  were  communicated,  and 
were  admissible  in  evidence  as  relevant  to  the  question  whether 
defeiuhint  had  reasonable  cause  to  apprehend  an  attack,  fatal 
to  Hie  or  frauglit  with  great  botlily  injury,  and,  hence,  was 
justilied  in  acting  on  a  hostile  demonstration  and  one  of  much 
less  ])r()nounced  character  than  if  such  threats  had  not  j)re- 
ceded  it.  They  were  relevant  because  indicating  cause  for 
apprehension  of  danger  and  reason  for  ])romptness  to  repel 
attack,  but  they  could  not  have  been  admitted  on  a  record 
such  ;is  this,  if  otfered  by  the  ])rosecution  as  tending  to  show 
spite,  ill  will  or  grudge  on  the  part  of  the  person  tiireatened; 
nor  could  the\%  being  admitted  on  defendant's  behalf,  if 
cou|)led  with  an  actual  or  a])j)arent  hostile  dfjuionstration,  be 
turned  against  him  in  the  absence  of  evidence  justifying  such  a 
construction.  The  logical  inference  was  that  these  threats 
excited  apprehension,  and  another  and  inconsistent  inference 
could  not  be  arbitrarily  substituted.  If  defendant,  to  use  the 
graphic  language  of  the  court,  hunted  his  father  up  and  shot 
him  (U>wn  merely  because  he  had  made  the  threats,  specula- 
tion as  to  his  mental  processes  was  uncalled  for.  If  deleiulant 
conuuitted  the  homicide  because  of  the  threats  in  the  sense  of 
acting  upon  emotions  aroused  by  them,  then  some  basis  must 
be  laid  by  the  evidence  other  than  the  threats  themselves 
before  a  particular  emotion,  dillerent  from  those  they  would 


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Mi 


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U4: 


AMERICAN  CRIMINAL  REPORTS. 


ordinarily  inspire  under  the  circumstances,  could  be  imputed 
as  a  motive  for  the  fatal  shot. 

What  is  or  is  not  an  overt  demonstration  of  violence,  varies 
with  the  circumstances.  Under  some  circumstances  a  slio-ht 
movement  may  justify  instant  action  because  of  reasu  ;il)le 
apprehensi(»n  of  danger;  under  other  circumstancos  <h'  ould 
not  be  so.  And  it  is  for  the  jury  and  not  for  the  judge,  jXiss- 
ing  upon  the  weight  and  eifect  of  the  evidence,  to  determine 
how  this  may  be. 

In  this  case  it  was  essential  to  the  defense  that  the  jury 
should  be  clearly  and  distinctl /  advised  as  to  the  bearing  of 
the  threats  and  the  appearance  of  danger,  at  the  moment, 
from  defendant's  standpoint,  and  particuhirly  so  as  it  di'l  ^:>t 
appear  that  the  deceased  then  had  a  pistol  upon  him,  tl  'nv/h 
there  was  evidence  that  it  was  his  habit  to  carry  one,  and  tiiat 
he  had  had  one  immediately  before. 

"We  think  that  the  language  of  the  court,  in  the  particulars 
named,  is  open  to  the  criticism  made  in  reference  to  like 
instructions  under  consideration  in  Thompson  v.  United  /States, 
1.55  U.S.  271,  281,  where  we  remarked:  "  While  it  is  no 
doubt  true  that  previous  threats  will  not,  in  all  circumstances, 
justify  or,  perhaps,  even  extenuate  the  act  of  the  party  threat- 
ened, in  killing  the  person  who  uttered  the  threats,  3'et  it  by 
no  means  follows  that  such  threats,  signifying  ill  will  and 
hostility  on  the  part  of  the  deceased,  can  be  used  by  the  jury 
as  indicating  a  similar  state  of  feeling  on  the  part  of  the 
defendant.  Such  an  instruction  was  not  only  misleading  in 
itself,  but  it  was  erroneous  in  the  present  case,  for  the  further 
reason  that  it  omitted  all  reference  to  the  conduct  of  the 
dec(!ased  at  the  time  of  the  killing,  which  went  to  show  an 
intention  then  and  there  to  carry  out  the  previous  threats." 

Other  exceptions  to  parts  of  the  charge  were  taken,  but, 
while  not  to  be  understood  as  holding  that  there  was  no  error 
in  respect  thereof,  we  do  not  feel  calle<l  upon  to  prolong  this 
oi)inion  by  their  consideration,  and  they  may  not  arise  upon 
another  trial. 

Where  the  charge  of  the  trial  judge  takes  the  form  of  ani- 
mated argument,  the  liability  is  great  that  the  propositions  of 
law  may  become  interrupted'  by  digression,  and  so  intcr- 
mingl(Hl  with  inferences  sj)ringing  from  forensic  ardor,  that 
the  jui'y  are  left  without   proper  instructions;  their  aj)pro- 


PEOPLE  V.  HASBROUCK. 


445 


priate  province  of  dealing  with  the  facts  invaded,  and  errors 
intervene  which  the  pursuit  of  a  different  course  would  have 
avoided. 

Judo-ment  reversed  and  cause  remanded,  with  a  direction  to 
set  aside  the  verdict  and  grant  a  new  trial. 

■^OTE.— Witness— Competency  of  child. — In  Com.  v.  Robinson,  165  Mass. 
426.  The  question  of  the  competency  of  the  testimony  of  a  child  of  tender 
years  is  declared  to  be  a  matter  resting  largely  in  the  discretion  of  the  trial 

judge. 

"  Tlie  law  fixes  no  limit  of  age,"  says  the  court,  "which  children  must  have 
reached  in  order  to  be  competent  as  witnesses,  and,  unless  for  manifest 
error,  we  can  not  revise  the  decision  of  the  presiding  justice  that  the  little 
girl  in  this  ^ase  had  sufficient  intelligence  and  sufficient  sense  of  the  duty  of 
telling  the  truth  to  enable  her  to  testify.  No  such  error  appears  in  the 
present  case.  Although  there  is  a  certain  incongruity  in  administering  an 
oath  to  one  who  can  not  be  convicted  of  perjury,  nevertheless,  the  fact  that 
the  child  was  too  young  to  be  convicted  of  perjury  is  not  decisive  against 
her  competency.  Of  course,  upon  the  bill  of  exceptions,  we  have  not  to 
consider  how  much  weight  might  properly  be  given  to  her  testimony.  She 
was  a  little  over  five  years  and  five  months  old  at  the  time  of  the  alleged 
assault  and  a  little  over  five  years  and  nine  months  old  at  the  time  of  the 
trial.  In  Wheeler  v.  U.  S.,  1C9  U.  S.  523  (a  case  which  has  come  to 
our  notice  since  the  arguments),  a  new  trial  was  refused  where  a  child, 
younger  at  the  time  of  the  occurence,  and  at  the  time  of  the  trial,  had  been 
allowed  to  testify;  and  in  that  case  there  had  also  been  a  longer  interval 
between  the  time  of  the  occurrence  and  the  time  of  the  trial.  That  case  is 
fully  in  point,  and  many  recent  decisions  are  cited.  See,  also,  Com.  v.  Lynes, 
142  Mass.  577;  McOuire  v.  People,  44  Mich.  286;  Johnson  v.  State,  61  Ga. 
35." 


PEorLE  V.  Hasbkouck. 

(11  Utah,  291.) 

Practice:    Constitutional  law— Privileges  of  citizens— Physicians  and 
surgeons — Law  requiring  them  to  submit  to  examination. 

1.  Thesufliciency  in  form  of  a  criminal  complaint  will  not  be  considered, 

when  raised  for  tlie  first  time  on  appeal  by  a  defendant,  who  ad- 
mitted the  commisson  by  him  of  the  alleged  offense,  and  agreed  on  the 
trial  to  waive  any  formal,objections,  and  that  the  case  should  be  tried 
upon  the  question  of  the  validity  of  the  statute  upon  which  the  prose- 
cution was  based. 

2,  The  prohibitions  of  the  United  States  constitution  against  state  legisla- 

tion abridging  the  privileges  of  citizens  are  not  violated  by  act  March 


H-    .  1 


4-ia 


AMERICAN  CRIMINAL  REPORTS. 


10, 1893,  applicable  alike  to  citizens  of  Utah  and  of  other  states  and 
territories,  wliicli  authorizes  the  licensing,  witliout  examination,  of 
nie(li(;al  pra^luates  wlio  were,  but  not  those  who  were  not,  in  actual 
practice  at  its  passage,  and  also  of  persons  who  had  practiced  for  ten 
years  in  tlie  territory  before  the  taking  effect  of  the  act,  upon  passing 
an  examination,  although  without  a  diploma,  while  requiring  othoi-sto 
have  a  diploma  besides  passing  an  examination. 
8.  Such  act  is  not  unconstitutional  upon  the  ground  that  it  makes  no 
specific  disiwsition  of  "he  fees  collected  from  applicants,  since,  by  pro 
viding  a  treasury  of  th  '  boax'd  of  examiners,  and  an  income,  the  power 
is  conferred  by  necessa;  y  implication  to  devote  the  fees  to  the  payment 
of  the  necessary  expenses. 

4.  Nor  is  such  act,  in  authorizing  the  board  to  ascertain  and  determine  tlie 

qualifications  of  applicants  to  practice  medicine,  unconstitutional,  as 
conferring  judicial  jwwer  on  the  board. 

5.  Appointments  of  members  of  the  board,  are  not  invalid  on  the  ground 

that  none  of  them  were  by  and  with  the  advice  and  consent  of  the  leg- 
islature,  as  provided  by  section  1  of  the  act,  it  having  been  passed  on 
the  last  day  of  the  session  of  the  legislature,  whose  sessions  are  biennial, 
so  that  it  would  have  been  impossible  to  have  procured  such  consent 
at  that  session  or  until  the  next  session,  held  two  years  later. 

6.  The  failure  of  the  governor  to  appoint  the  members  of  the  board  wjtliin 

a  month  after  the  offices  came  into  existence,  as  provided  Jliy  tlie  act, 
did  not  invalidate  the  appointments,  the  provision  as  to  the  time  of 
making  such  appointments  being  merely  directory. 

Appeal  from  the  District  Court  of  the  Third  Judicial  Dis- 
trict, Hon.  II.  W.  Smith,  Judge. 

Richard  A.  Ilasbrouck,  upon  conviction  before  narincl 
Pratt,  U.  S.  Commissioner,  of  practicing  medicine  witliout  a 
license,  appeaie<l  to  the  district  court,  and  from  a  judgment  of 
conviction  in  the  district  court,  upon  a  trial  de  novo,  a])peals. 
Affirmed. 

J.  E.  Cochran,  Le  Grand  Yotmg  and  J.  II.  Murphy,  for 
appellant. 
J.  W.  Jxidd,  U.  S.  Attorney,  for  respondent. 

MKRRirr,  C.  J.  The  defendant  in  this  case  was  convicted 
before  Ilarmel  Pratt,  commissioner,  of  practicing  medicine 
without  a  license,  in  violation  of  the  provisions  of  the  act  of 
the  territorial  legislature  entitled  "  An  act  to  regulate  tlie 
]iractice  of  medicine,"  approved  March  10, 1802;  and  was  lined 
^.50.  On  the  29th  of  May,  1893,  an  appeal  was  taken  to 
the  Third  district  court  of  Utah  territory  by  the  defendant. 
Thereafter,  and  on  the  25th  of  January,  1894,  the  case  was 


m 


PEOPLE  V.  HASBROUCK. 


447 


heard  in  the  district  court  before  the  Honorable  II.  "W.  Smith, 
presiding.    A  jury  was  waived,  and  the  defendant  was  tried 
on  tlie  following  agreed  statement  of  facts :    "  That  the  defend- 
ant Richard  A.  Ilasbrouck,  upon  the  30th  day  of  April,  1803, 
and  from  and  after  said  datp,  continually,  to  the  6th  day  of 
Mav,  1803,  practiced  medicine  and  surgery  at  Salt  Lake  City, 
in  Salt  Lake  county,  Utah  territory,  and  has  so  practiced  medi- 
cine and  surgery  in  said  city  and  county  since  prior  to  the  10th 
day  of  March,  1802.     That  said  defendant  had  received  from 
the  Bennett  College  of  Eclectic  Medicine  and  Surgery,  in  the 
year  1SS2,  a  diploma  as  a  physican  and  surgeon,  and  has  prac- 
ticed medicine  and  surgery  ever  since  receiving  the  same. 
That  after  the  passage  and  approval  of  the  act  of  the  governor 
and  legislative  assembly  of  the  territory  of  Utah  entitled  '  An 
act  to  regulate  the  practice  of  medicine,'  approved  March  10, 
1892,  the  governor  of  the  territory  of  Utah  appointed  seven 
persons  as  a  board  of  medical  examiners  of  Utali  territory,  to 
execute  the  duties  in  said  act  prescribed,  and  issued  commis- 
sions to  each  of  said  persons  as  a  member  of  said  board.     That 
none  of  said  appointments  were  made  by  or  with  the  advice  or 
consent  of  tlio  council  of  said  legislative  assembly,  and  none 
of  said  commissions  v.-ere  issued  until  after  the  adjournment 
of  said  assembly  in  1892,  and  the  last  on  December  20,  1802. 
That  the  day  of  the  approval  of  said  act,  March  10,  1802,  was 
the  last  day  of  the  session  of  said  legislative  assembly  in  the 
year  IS02.     That  the  said  seven  persons  so  commissioned  as 
aforesaid  met  on  the  2-lth  day  of  December,  1892,  and  organ- 
ized as  the  board  of  medical  examiners  of  Utah  territory,  and 
elected  one  of  their  members,  Allen  Fowler,  M.  D.,  as  ])resi- 
dent  of  said  board,  and  Charles  C.  Schinnick  as  secretary  and 
treasurer  tiiereof.     That  said  board  held  regular  meetings  at 
Salt  Lake  City,  aforesaid,  on  the  first  Monday  in  January, 
1833,  and  on  the  first  Monday  in  IMarch,  1S93,  and  numerous 
other  meetings  at  the  same  place  between  the  first  Monday  in 
January,  1893,  and  the  30th  day  of  April,  1803,  for  the  purpose 
of  receiving  and  considering  applications  for  license  or  certifi- 
cates entitling  the  holders  thereof  to  practice  i medicine  and 
surgery  in  Utah  territory,  as  ])rovided  and  contemplated  in 
said  act,  of  which  meeting  the  said  defendant  had  notice.     That 
said  defendant  has  not  at  any  time  made  application  to  said 
board  for  any  license  or  certificate  to  entitle  him  to  practice 


HIP 


n 


Us 


AMERICAN  CRIMINAL  REPORTS. 


medicine  or  surgery,  as  provided  and  contemplated  in  said  act. 
and  so  practiced  medicine  and  surgery  as  aforesaid  witliout  an\' 
such  license  or  certiiicate  having  been  issued  to  him  bv  said 
board."  The  defendant  was  adjudged  guilty  as  charged,  and 
sentenced  to  pay  a  fine  in  the  sum  of  $50.  From  this  judg- 
ment  the  defendant  appealed  to  the  supreme  court. 

Upoh  the  question  whether  the  complaint  is  sufficient  in 
form  the  authorities  are  somewhat  in  conflict;  but  it  is  not 
necessary  to  pass  upon  that  question,  for  it  is  stated  by  appel- 
lant's counsel  that  any  objection  to  the  form  of  the  complaint 
was  waived  in  the  court  below,  and  it  was  agreed  between  the 
prosecution  and  the  defendant  that  the  case  should  be  tried 
upon  the  question  of  the  validity  of  tiie  statute  upon  wliich 
the  complaint  is  founded,  and  of  the  validity  of  the  appoint- 
ment of  the  board  of  medical  examiners  by  the  governor.  Tlie 
agreed  statement  of  facts,  signed  by  the  defendant,  admits  in 
so  many  words  that  upon  the  JJOth  day  of  A})ril,  1893,  and  from 
and  after  said  date,  continuously  to  the  Oth  da}'^  of  INfay,  181)3 
the  time  charged  in  the  complaint,  at  Salt  Lake  City,  in  Salt 
Lake  county,  Utah  territory — the  place  charged  in  the  com- 
plaint— he  practiced  medicine  and  surgery  v/ithout  an}-^  license 
or  certificate  from  the  board  of  medical  examiners.  This  was 
an  admission  of  the  ultimate  fact  to  be  proved  by  the  prosecu- 
tion, and  dispensed  with  the  necessity  upon  the  part  of  the 
prosecution  of  producing  evidence  of  the  ])robative  facts,  from 
which  the  ultimate  facts  would  be  adduced,  and  dispensed  also 
with  any  further  consideration  of  the  formal  requisites  of  the 
com])laint.  "  That  the  defendant,  at  the  time  and  ])lacc  named, 
practiced  medicine  witliout  a  license,"  if  it  could  be  held  a  con- 
clusion, is  the  defendant's  own  conclusion,  couched  in  the 
language  of  the  statute,  and  set  forth  in  the  agreed  statement 
of  facts.  Under  these  circumstances,  an  objection  to  the  suf- 
ficiency of  the  complaint  in  form,  raised  for  the  first  time  on 
appeal  will  not  be  considered. 

The  statute  upon  which  this  prosecution  is  founded  is  of  the 
same  general  character  as  the  statutes  of  a  large  numl)er  of 
states  upon  the  same  subject — the  regulation  of  the  practice 
of  medicine.  The  predominant  characteristic  and  purpose  of 
such  statutes  is  to  prevent  the  practice  of  medicine  by  incom- 
petent and  improper  persons;  to  provide  for  the  ascertaimcnt 
and  certification  by  a  public  officer  or  board  of  qualilications 


PEOPLE  V.  HASBROUCK. 


449 


to  practice,  and  for  the  public  registry  of  legally  licensed 
pliysicians,  and  to  prohibit  and  punish  the  practice  of  medicine 
by  those  who  hf.ve  failed  or  refused  to  obtain  the  prescribed 
license  or  certificate  of  qualifications.  This  statute  provides 
for  the  appointment  of  a  "  board  of  seven  medical  examiners 
from  various  recognized  schools  of  medicine,"  who  shall  qual- 
ify by  taking  an  oath  that  they  are  *'  graduates  of  legally 
chartered  colleges  in  good  standing,  and  that  they  will  faith- 
fully perform  the  duties  of  their  office.'' — Section  1.  Section 
2  provides  that  said  board  shall  have  the  power  to  issue  cer- 
tificates to  all  who  furnish  satisfactory  proof  of  having  received 
decrees  or  licenses  from  chartered  medical  colleges  in  good 
and  legal  standing,  and  pass  a  satisfactory  examination  before 
said  board;  that  said  board  **  shall  prepare  two  forms  of  cer- 
tificates, one  for  persons  examined  and  favorably  passed  upon 
by  tlie  board,  the  otiier  for  persons  as  provided  for  in  section 
11  of  this  act."  Section  3  provides  that  the  fee  for  the  exam- 
ination and  certificate,  as  provided  for  in  section  2,  shall  be 
|,25,  which  shall  be  paid  to  the  treasurer  of  the  board  of 
examiners.  Section  4  provides  that  *'  graduates  of  respectable 
medical  colleges,  who  are  at  this  time  engaged  in  actual  prac- 
tice in  this  territory,  shall  be  licensed  to  practice  medicine 
under  this  act  upon  presentation  of  their  degree  to  said  board 
and  upon  producing  satisfactory  evidence  of  the  identity  of 
said  applicant.  The  fee  for  such  license  shall  be  five  dollars, 
to  be  paid  to  the  treasurer  of  the  board  of  examiners."  Sec- 
tion 8  provides  that  "  the  board  of  medical  examiners  may 
refuse  to  issue  the  certificates  provided  for  in  this  act  to  indi- 
viduals guilty  of  unprofessional  or  disiionorable  conduct,  the 
nature  of  wliich  shall  bo  stated  in  writing,  and  it  may  revoke 
sucli  certificates  for  like  causos,  to  be  stated  in  writing." 
Section  10  provides  that  "any  person  practicing  medicine  or 
surgery  witliin  the  territory  without  first  having  obtained 
a  certificate  as  herein  })rovided  for,  or  contrary  to  the  provis- 
ions of  this  aot,  shall  bo  deemed  guilty  of  a  misdemeanor." 
Section  11  provides  that  "all  persons  not  graduates  of 
medical  colleges,  who  have  practiced  medicine  ten  years  con- 
tinuously in  this  territory,  prior  to  the  taking  effect  of  this 
act,  shall  upon  proper  application  and  payment  of  the  fee 
for  examination  as  provided  in  section  3  of  this  act,  accom- 
panied by  a  petition  signed  by  twenty  five  legal  voters  living 
28 


450 


AMERICAN  CRIMINAL  REPORTS. 


in  the  city  or  precinct  where  such  applicant  practices,  bo  admit- 
ted to  examination  before  tiie  board  of  medical  examiners, 
and  if  satisfactory  shall  receive  such  certificate,  unless  it  shall 
be  ascertained  and  determined  by  the  board  of  medical  oxiim- 
iners  that  the  person  so  applying  for  a  certiiicate  is  of  immoral 
character  or  guilty  of  unprofessinul  or  dishonorable  coiuluct, 
in  which  case  said  board  may  reject  such  application,  and 
provided  that  such  application  for  a  certificate  shall  bo  made 
within  six  months  after  the  taking  effect  of  this  act;  and  all 
persons  holding  a  certificate  on  account  of  ten  years'  piactice 
shall  be  subject  to  all  the  requirements  and  discipline  of  this 
act  in  regard  to  their  future  conduct  in  the  practice  of  medi- 
cine, the  same  as  all  other  persons  holding  certificates.  And 
all  persons  not  having  applied  for  or  received  such  cortilicates 
within  six  months  after  the  taking  effect  of  this  act,  and 
all  persons  whose  applications  have,  for  cause  herein  named, 
been  rejected  or  certificates  revoked,  shall,  if  they  ])ract.ice 
medicine,  be  deemed  guilty  of  practicing  in  violation  of  law, 
and  shall  suffer  the  penalties  herein  provided."  And  in  sec- 
tion 15  it  is  ])rovided  that  "the  term  respectable  modical 
colleges  in  this  act  shall  include  colleges  in  legal  standin*^  of 
any  recognized  school  of  medicine."  The  other  sections  of 
the  act  relate  to  the  public  registry  of  physicians'  licenses, 
meetings  of  the  board,  and  other  matters  not  necessary  to  be 
recited. 

That  legislation  of  the  general  character  enacted  in  this 
statute — namely,  legislation  to  protect  the  community  against 
the  effects  of  ignorance  and  incapacity,  as  well  as  doco|)tion 
and  fraud  in  the  practice  of  moilicine,  by  recpiiring  a  certain 
degree  of  learning  and  skill  upon  the  part  of  the  practitioner, 
'•ascertained  upon  an  examination  by  competent  ])ersons,  or 
inferred  from  a  certificate  in  the  form  of  a  diploma  or  license 
from  an  institution  established  for  instruction  on  the  subject," 
is  a  legitimate  exercise  of  the  police  ]K)wor  of  the  state,  and 
that  depriving  persons  not  so  qualified  of  the  right  to  ])ractico, 
is  not  obnoxious  to  the  inhibition  of  the  federal  constitution 
against  the  deprivation  of  property  without  due  process  of 
law,  are  propositions  which  are  thoroughly  settled.  Dant  v. 
West  Virginia,  12!)  U.  S.  lU;  Tied.  Lim.,  §§  87,  88;  Cooley, 
Torts,  p.  289.  This  general  proposition  is  admitted  by  the 
appellant,  but  he  attacks  the  statute  as  violative  of  the  con- 


PEOPLE  V.  HASBROUCK. 


451 


•■11 


stitutlonal  provisions  that  the  citizens  of  each  state  shall  be 
entitled  to  all  the  privileges  and  immunities  of  citizens  in  the 
beveral  states,  in  that  graduates  of  respectable  medical  col- 
leges who  were  at  the  time  of  the  passage  of  the  act  engaged 
in  actual  practice  of  medicine  in  the  territory  may  be  licensed, 
under  section  4  of  this  act,  without  examination,  and  upon  the 
payment  of  a  fee  of  only  $5;  while  citizens  of  a  state  or  other 
territory  who  were  likewise  graduates  of  respectable  medical 
colleges,  but  who  were  not  engaged  in  actual  practice  in  this 
territory  at  the  time  of  the  passage  of  the  act,  are  not  entitled 
to  such  privilege,  but  in  addition  to  presenting  their  diplomas 
and  making  ])roof  of  their  identity,  must  also  submit  to  an 
examination  as  to  their  qualiiications  to  practice,  and  must 
pay  a  fee  of  825. 

This  statute  does  not  contravene  this  provision  of  the  con- 
stitution; nor  does  it  contravene  that  part  of  the  fourteenth 
amcnt'ment  which  declares  that  "no  state  shall  make  or 
enforce  any  law  which  shall  abridge  the  privileges  or  immu- 
nities of  citizens  of  the  United  States; "  nor  is  the  statute 
obnoxious  to  either  of  these  constitutional  provisions  by  reason 
of  the  fact  that  persons  who  have  practiced  medicine  for  ten 
vears  continuously  in  this  territory  prior  to  the  taking  effect 
of  the  act  may  be  licensed  to  ptactico  upon  passing  a  satis- 
factory examination,  although  without  a  dij)loma,  while  others 
are  re(iuired  both  to  pass  an  examination  and  to  possess  a 
diploma.  The  ))lain  answer  to  the  appellant's  pbjection  is 
that  these  provisions  of  the  statute  arc  not  directed  against 
the  citizens  of  other  states.  They  do  not  abridge  any  of  their 
privileges  or  immunities.  They  do  not  withhold  from  them 
any  privileges  or  immunities  which  are  not  withheld  also  from 
citizens  of  Utah  similarly  situated.  '*  Citizens  of  other  states 
are  entitled  to  practice  medicine  and  surgery  here  on  precisely 
the  same  terms,  and  subject  only  to  the  same  restrictions  as 
our  own  citizens."  Even  if  it  were  true  that  one  of  the  sorts 
of  qualiiications  is  such  that  none  but  the  citizens  of  Utah 
could  possess  it,  this  would  not  render  the  act  obnoxious  to 
this  provision  of  the  constitution.  Ex  parte  iSjniuici/,  10  Nev. 
333;  Hardiny  v.  People,  10  Colo.  387. 

It  is  contended  by  the  appellant  that  the  statute  is  uncon- 
stitutional, because,  as  he  claims,  no  disposition  is  directed  of 
the  fees  authorized  by  sections  3,  4  and  11  of  the  act.    The 


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452 


AMERICAN  CRIMINAL  REPORTS. 


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act  creates  a  treasury  and  a  treasurer  of  the  board.  Tt  pro- 
vides fees  shall  be  paid  to  the  treasurer;  that  is,  into  the 
treasury  of  the  board.  The  board  is  a  Ijoard  of  public  ollicers, 
created  for  a  public  purpose,  charged  with  the  performance  of 
important  public  duties,  in  the  exercise  of  which  various 
expenditures  must  necessarily  bo  made.  That  the  board  sliall 
liave  power  to  incur  and  pay  expenses  is  not  only  implied 
from  its  very  necessity,  but  distinctly  appears  from  the  provis- 
ion of  section  12  that  the  fees  received  from  applicants  to 
practice  obstetrics  shall  be  applied  toward  defrayin<^  tlio 
expenses  of  said  board.  It  is  argued  by  the  appellant  that 
the  latter  provision  defines  the  limit  to  which  expenses  may 
bo  paid  out  of  the  fees  received;  that  the  act  appropriates 
only  the  fees  received  from  ap])licants  for  license  to  ])ractice 
obstetrics  to  the  ])ayment  of  the  board's  expenses;  and  that 
all  other  fees  are  exacted  for  no  definite  ])urpose,  and  are 
therefore  illegal. 

But  there  is  nothing  in  the  act  to  show  that  the  legislature 
contemplated  that  the  fees  mentioned  in  section  12  would  bo 
sufficient  to  defray  all  the  expenses  of  the  board,  nor  does  the 
mere  absence  from  the  other  sections  of  a  provision  similar  to 
that  contained  in  section  12,  afford  anv  ground  for  arffuino- 
that  the  other  classes  of  fees  were  not  intended  to  be  devoted 
to  the  same  purpose.  The  language  of  section  12,  on  the  con- 
trary, seems  to  clearly  imi)ly  that  the  legislature  contemplated 
the  fees  mentioned  in  that  section  as  onl  v  one  of  the  sources  from 
which  the  expenses  of  the  board  sliould  be  paid.  The  plmisc, 
"  to  be  applied  toward  "  defraying,  etc..  is  the  language  appro- 
priate to  a  case  in  which  it  is  contemplated  that  a  particular 
source  of  revenue  will  be  sufficient  to  ])ay  only  a  ])art  of  the 
required  outlay.  It  is  unnecessary  to  determine  whether  the 
compensation  of  the  members  of  the  board  for  their  oHicial 
services  may  not  be  one  of  the  expenses  which  the  board  is 
authorized  to  pay  out  of  its  treasury.  It  is  sufficient  to  say 
that  the  act,  by  necessitating  expense  in  its  execution,  in  creat- 
ing a  board  treasury,  and  providing  an  income,  clearly  imi)lies 
a  power  to  devote  that  income  to  the  payment  of  necessary 
expenses.  The  fees  provided  for  are  all  manifestly  intended 
to  meet  the  cost  of  executing  the  law,  and  are  therefore  legit- 
imate and  proper  license  fees,  whether  the  actual  cost  of 
executing  the  law  has  been  overestimated,  or  underestimated, 
or  correctly  estimated  in  fixing  the  amount  of  fees. 


PEOPLE  V.  HASBROUCK. 


453 


The  objection  that  the  statute  attempts  to  confer  judicial 
power  on  the  board  is  not  well  founded.     Many  executive  offi- 
cers, even  tiioso  wlio  are  spolccn  of  as  purely  ministerial  olHeers, 
act  judicially  in  the  determination  of  facts  in  the  performance 
of  their  ofHcial  duties;  and  in  so  doinj^  they  do  not  exercise 
»<  judicial  jtower,"  as  that  phrase  is  commonly  used,  and  as  it 
is  used  in  the  organic  act,  in  conferrin<f  judicial  power  upon 
speciHod  courts.     The  ])owors  conferred  on  the  board  of  med- 
ical examiners  are  nowise  different  in  character  in  this  respect 
.  from  those  exercised  by  the  examiners  of  candidates  to  teach 
in  our  public  schools,  or  by  tax  assessors  or  boards  of  equaliza- 
tion in  determinin<i;,  for  purposes  of  taxation,  the  value  of 
property.    The  ascertainment  and  determination  of  qualifica- 
tions to  practice  medicine  by  a  board  of  competent  experts, 
appointed  for  that  purpose,  is  not  the  exercise  of  a  power 
which  appropriately  belongs  to  the  judicial  department  of  the 
government.     It  does  not  trench   upon  the  judicial  power. 
WlUianis  V.  State,  113  Ind.  514;  State  v.  State  Board  of  Medi- 
cal Ecanilne/'s,  Si  Minn.  387.     This  act  entitles  every  person 
whose  qualifications  to  practice  medicine,  in  point  of  learning 
and  skill,  or  in  point  of  moral  character,  is  in  any  manner 
drawn  in  question,  to  a  hearing  before  the  board.     It  would 
be  absurd  to  contend  that  tlie  courts  must  be  converted  into 
boards  of  medical  examiners  to  ascertain  and  decide  whether 
an  individual  possesses  such  technical  knowledge  or  such  moral 
character  that  he  may  be  permitted  to  practice  medicine  with 
safety  to  tiie  public,  or  whether  the  institution  from  which  he 
holds  a  diploma  is  a  "  respectable  medical  college,"  or,  on  the 
other  hand,  a  fraud  or  an  institution  whose  instruction  is  unfit 
to  properly  and  decently  prepare  its  graduates  for  practice. 
The  determination  of  these  and  kindred  questions  relating  to 
the  fitness  of  an  individual  to  carry  on  an  occupation,  requir- 
ing for  its  safe  and  proper  conduct,  a  person  of  decent  moral 
character,  or  to  engage  in  an  occupation  requiring  special 
knowledge,  care  and  prudence,  such  as  that  of  a  pilot,  or  many 
others  which  may  be  mentioned,  including,  of   course,  the 
practice  of  the  professions  of  law  and  medicine,  may  consti- 
tutionally be  and  is  very  properly  devolved  everywhere  upon 
boards  of  inspection  composed  of  experts  in  the  particular 
occupation  in  question.     The  right  of  every  person  whose  quali- 
fications, mental  or  moral,  are  to  be  determined  by  this  board,  to 


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a  hearing  before  it,  is  clearly  implied  by  the  provisions  for  the 
administration  or  oaths  and  the  taking  of  testimony  "  in  all 
matters  relating  to  its  duties,"  and  from  other  provisions  of 
the  act.  If  the  board  should,  through  malice,  or  prejudice,  or 
dishonesty,  arbitrarily  refuse  or  revoke  a  license,  the  injured 
party  would  have  his  remedy  by  appropriate  proceedings  in 
the  courts,  and  the  board  would  be  restrained  from  doing  or 
compelled  to  undo  the  wrong.  But,  if  the  action  of  the  board 
is  in  good  faith,  its  final  determination  of  qualification  is  not 
obnoxious  to  any  constitutional  provision.  Due  process  of  law 
is  not  necessarily  judicial  process.  Ex  parte  Wall,  107  U.  S. 
265;  State  v.  State  Board  of  Medical  Exainiyiers,  34  Minn.  389; 
Railroad  Co.  v.  Backus,  133  Ind.  5 13;  33  N.  E.  42 1.  A  uniform 
rule  and  a  uniform  process  for  ascertaining  and  determining 
qualifications,  as  prescribed  by  this  act,  operating  equally  on 
all  persons,  affording  to  .all  persons  the  right  to  establish  their 
qualification  before  the  board,  this  is  due  process  of  law. 

The  validity  of  the  appointment  of  the  board  acting  at  the 
time  specified  in  the  complaint  is  challenged  upon  the  ground 
that  none  of  the  members  were  appointed  by,  and  with  the 
advice  and  consent  of,  the  council,  as  provided  in  section  1  of 
the  act.  It  may  be  noted,  in  the  first  place,  that  not  only  Avas 
the  act  approved  on  the  last  day  of  the  session  of  the  legisla- 
ture which  enacted  it,  but,  there  being  no  specified  time  men- 
tioned in  the  act  upon  which  it  should  go  into  effect,  it  would 
take  effect,  under  the  provisions  of  Section  2973  of  the  Com- 
piled Laws,  upon  June  1, 1892.  It  was  therefore  legally  impos- 
sible for  the  governor  to  appoint  a  board  of  medical  examiners 
by  and  with  the  advice  and  consent  of  the  upper  house  of  the 
legislature  which  passed  the  act.  The  provision  that  the  gov- 
ernor shall  appoint  the  board  upon  the  passage  of  this  act,  is 
to  be  construed  as  equivalent  to  a  provision  that  he  should 
appoint  upon  the  taking  effect  of  the  act.  Jlardliifj  v.  People, 
10  Colo.  387. 

To  assume  that  the  legislature  intended  to  create  offices 
which  could  not  be  filled  until  the  next  biennial  session,  to 
make  a  law  which  could  not  be  executed  for  two  years, 
although  legally  in  effect  on  the  1st  day  of  June  next  follow- 
ing its  enactment,  would  bo  an  absurdity.  But  the  power  of 
the  appointing  executive,  under  such  a  provision  as  that  con- 
tained in  this  act  and  in  section  7  of  the  organic  act,  to  fill  a 


PEOPLE  V.  HASBROUCK. 


455 


vacancy,  when  such  vacancj^  occurs  during  the  recess  of  the 
conlirming  legislature  or  legislative  body,  has  been  frequently 
recognized  as  a  necessary  incident  of  the  executive  power. 
Such  an  appointment  by  the  governor  of  this  territory,  with- 
out the  advice  or  consent  of  the  council,  to  an  oflHce  validly 
created  by  the  legislature,  but  which  had  never  been  legally 
filled,  was  recognized  by  the  Supreme  Court  of  the  United 
States  in  the  case  of  Clayton  v.  Utah  Territory^  132  U.  S.  632. 
The  validity  of  the  appointment  made  by  the  governor  alone 
during  the  recess  of  the  legislature  has  received  the  further 
sanction  of  long-continued  practical  recognition  in  all  the 
departments  of  the  territorial  government.  The  offices  created 
by  this  act  came  into  existence  June  1,  1892,  and  were  vacant; 
an  ,  although  they  had  not  become  vacant  by  the  death  or 
resignation  of  any  incumbent,  it  was  clearly  the  duty  of  the 
executive  to  fill  them,  and  put  the  law  into  execution.  The 
provision  in  the  statute  for  the  filling  of  vacancies  by  the  gov- 
ernor was  in  itself  a  sufficient  warrant  for  his  action,  although 
his  power  to  do  so  might  well  be  rested  on  other  grounds. 
His  failure  to  make  the  appointments  within  a  month  after 
the  offices  came  into  existence  did  not  invalidate  them,  that 
provision  being  clearly  directory.  The  board  was  validly 
appointed. 

For  the  reasons  stated  in  this  opinion,  the  judgment  of  the 
court  below  is  affirmed. 


Note. — Sttfflciency  of  complaint — Wairer. — The  import  and  meaning  of 
the  language  used  by  the  learned  judge  in  the  above  cause  might  be  calcu- 
lated to  mislead.  If  the  complaint  was  sufficient  to  give  the  commissioner 
jurisdiction  of  the  cause  and  the  parties,  the  district  court  liad  jurisdiction 
pn  appeal;  and  as  the  offense  was  not  even  an  indictable  misdemeanor,  the 
defendant  could  consent  to  any  amendment  of  the  complaint,  or  agree 
to  any  usual  mode  of  trial.  Of  course,  the  case  would  be  different  if  the 
Offense  was  a  felony  or  an  indictable  misdemeanor.  It  is  unnecessary  to 
do  more  than  call  attention  to  the  uniform  rule  of  law  that  a  defendant 
can  not  consent  to  an  amendment  of  an  indictment,  or  confer  jurisdiction 
Qn  a  court  by  consent  in  felony  cases. 

Excefitiona  in  statute — Wlien  itot  necessary  to  negative  in  information. — 
hy  act  of  the  legislature  of  1891,  of  Nebraska,  to  establish  a  state 
board  of  health  and  regulate  the  practice  of  medicine  in  the  state  of 
Nebraska,  it  was  made  unlawful  for  any  person  to  practice  medicine,  surgery, 
or  obstetrics,  or  any  of  the  branches  thereof,  without  first  having  obtained 
and  registered  a  certificate  from  the  state  board  of  health  as  provided  in 
the  act.    O'Connor  v.  State,  46  Neb.  157. 

The  exceptions  made  by  section  11  of  this  act  were  not  firom  the  opera- 


H 


^3 


vr 


P 


V 


i    Is; 


} 


I    i 


t 


\:-'. 


456 


AMERICAN  CRIMINAL  REPORTS. 


tion  of  the  portion  of  the  law  which  required  a  certificate  to  be  obtained 
from  the  state  board  of  health,  and  its  registration  by  persons  practicing 
medicine,  surgery,  or  obstetrics.  After  the  expiration  of  six  months  from 
the  passage  uf  the  act,  the  persons  designated  in  the  exceptions  were  as 
liable  to  prosecution,  for  non-compliance  with  the  law  in  tliese  particulars, 
as  any  others,  and  the  subject  of  the  exception  did  not  become  a  part  of 
the  description  of  the  offense  of  non-compliance  with  the  provisions  of  the 
act.  or  limit  or  qualify  the  language  of  the  act  creating  such  offence,  nor 
was  any  negative  averment  in  regard  to  the  exceptions  necessary  in  an 
information  charging  a  person  with  practicing  medicine,  etc,  without 
having  complied  with  the  provisions  of  the  act.    Id. 

The  decision  in  the  case  of  Oee  Wo  v.  State  86  Neb.  841,  overruled 
to  the  extent  that  it  held  that  a  negative  averment  in  regard  to  the 
matter  of  the  exceptions,  contained  in  section  1 1  of  the  act  referred  to, 
was  necessary  in  the  information  filed  in  that  case.    Id. 

In  an  information,  it  is  necessary  to  state  specifically  the  essential  facts 
constituting  the  crime  charged.    Id. 


State  v.  Absiiire. 
(47  La  Ann.  542.) 


V 


t< 


M 


>y.;,'t 


Practice  :    Continuance  of  criminal  ease— Application— Affldamts  taken 
as  true — Discretion  of  court. 

1.  No  delay  is  provided  by  law  for  arraignment,  after  an  indictment,  in 

order  to  enable  an  accused  to  prepare  his  preliminary  defenses.  Such 
an  indulgence  is  within  the  discretion  of  the  trial  judge. 

2.  The  well-established  rule  applicable  to  motions  for  continuance  in  crimi- 

nal cases  is  that  the  afildavit  of  the  accused  for  a  continuance  is,  for 
the  purposes  of  the  motion,  taken  as  true;  and  no  counter  affidavit  nor 
evidence  aliunde  can  be  received  pro  or  con. 

Af)peal  from  District  Court,  Parish  of  Aoadia;  "W.  C.  Perrault, 
Judge. 

Sylvester  Abshire  was  convicted  of  murder,  and  appeals. 
Affirmed. 

A.  <&  Chas.  Fontelieu  and  CJias.  W.  Du  Roy,  for  appellant. 
M.  J.  Ounningham,  Atty.  Gen.,  ^.  £.  Die  BuisHon^  Dist. 
Atty.  {E.  P.  Veazie,  of  counsel),  for  the  State. 

"W ATKINS,  J.  The  accused  appeals  from  a  verdict  of  guilty 
of  murder  and  sentence  to  death,  relj'ing  on  several  bills  of 
exception.    The  first  one  to  which  brief  of  counsel  challenges 


STATE  V.  ABSHIRE. 


457 


attention  was  retained  to  the  refusal  of  the  judge  to  grant 
additional  time  before  arraignment  to  prepare  the  prisoner's 
preliminary  defenses.  The  bill  of  exceptions  relates  "  that  the 
oflfence  with  which  he  stands  charged  is  alleged  to  have  been 
committed  on  the  31st  of  December,  1894;  that  the  grand  jury 
wf.s  impaneled  on  the  2d  day  of  January,  1895;  that  he  em- 
ployed counsel  on  the  3d  day  of  January,  1895;  that  on  the 
4th  of  January,  1895,  the  grand  jury  returned  a  true  bill  against 
him  for  the  crime  of  murder;"  that  his  counsel  was  summoned 
by  telegram,  and  arrived  on  the  4th  of  January,  1895;  "  that 
no  sufficient  time  has  been  granted  his  said  counsel  in  order  to 
prepare  his  preliminary  defenses."  For  overruling  defendant's 
motion,  the  trial  judge  assigns  the  following  reasons,  viz.: 
"  There  was  no  denial  of  the  request  for  additional  time.  On 
the  contrary,  all  the  time  asked  for  was  granted  by  the  court, 
and  the  arraignment  was  postponed  from  the  4th  to  the  5th 
of  January;  and  on  the  5th  of  January,  when  called  for  ar- 
raignment, the  deiendant  asked  for  no  additional  delay  in 
which  to  plead,  but  stood  mute,  and  the  court  directed  the  plea 
of  '  not  guilt3','  to  be  entered  for  him.  Besides,  the  law  pro- 
vides no  delay  for  arraignraeht  after  indictment  or  information, 
and  the  defendant  is  required  to  plead  when  arraigned,  which 
is  his  only  time  as  of  right.  State  v.  Shields,  33  La.  Ann.  1410; 
Whart.  dr.  PI.,  §  417;  1  Bish.  Cr.  Bl,  §  733."  Counsel  ques- 
tions the  accuracy  of  the  judge's  statement,  and  refers  to  the 
entry  on  the  minutes  to  show  that  in  point  of  fact  no  delay 
was  granted  at  all;  and  to  show,  further,  that  the  application 
for  delaj'  was  made  on  the  5th  of  January,  and  not  on  the  4th, 
and  that  he  was  called  into  court  and  coerced  to  plead  on  the 
same  day  that  the  motion  was  made.  But  of  what  avail  was 
that,  if  the  accused  had  not  the  legal  right  to  delay  ?  This 
question  was  passed  upon  in  State  v.  Shields,  33  La.  Ann.  1410, 
and  the  court  say :  "  Exception  taken  to  the  ruling  of  the 
court  in  requiring  him  to  plead  at  the  time  of  his  arraignment, 
and,  on  his  refusal,  in  ordering  the  plea  of  not  guilty  to  be 
entered  in  his  behalf;  the  complaint  being  that  he  was 
arraigned  on  the  same  day  on  which  the  indictment  was  found, 
and  had  not  time  to  determine  on  his  plea.  The  law  provides 
no  delay  for  arraignment  after  indictment  or  information,  and 
the  defendant  is  required  to  plead  when  arraigned,  which  is 
his  only  time  as  of  right.    1  Bish.  Cr.  Proc.,  §  734.    Indulgence 


':,'■■;.  ^  l?v, 


\[\\ 


.:  :i 


458 


AMERICAN  CRIMINAL  REPORTS. 


n 


is  often  granted  in  the  discretion  and  leniency  of  the  court, 
but  there  is  no  law  controlling  such  discretion."  [Our  italics.] 
This  decision  seems  to  settle  the  question  completely,  and  leave 
no  room  for  dispute,  and  the  trial  judge  seems  to  have  followed 
its  .precepts;  and,  in  so  doing,  committed  no  error.  State  v. 
Moultrie^  33  La.  Ann.  1146,  is  not  applicable,  as  it  relates  to 
the  question  of  time  to  procure  the  services  of  counsel,  the 
attendance  of  witnesses,  and  to  make  preparation  for  the 
defense  of  the  t^ccused;  not  one  of  these  being  an  incident  to 
the  prisoner's  arraignment. 

The  second  bill  of  exceptions  to  which  our  attention  has 
been  attracted,  is  that  relating  to  the  refusal  of  the  judge  to 
allow  the  introduction  of  testimony  in  support  of  defendant's 
motion  for  a  continuance  of  the  cause  until  the  next  regular 
term  of  court;  it  being  predicated  on  the  ground  that  it  was 
impossible  to  obtain  a  fair  and  impartial  trial  at  the  then 
pending  term  of  the  court,  the  popular  excitement  against  the 
defendant  being  so  strong  as  to  intimidate  and  swerve  the 
jury.  The  bill  of  exceptions  relates  "that  the  defendant 
moved  for  a  continuance  of  this  cause  until  the  next  roffular 
term  of  the  court,  in  order  to  allow  popular  prejudice  and 
excitement  to  allay,  so  as  to  secure  him  a  fair  and  impartial 
trial,  as  it  was  impossible  at  this  term  of  the  court  to  obtain 
a  fair  and  impartial  trial,  due  to  said  excitement  and  prejudice 
existing  against  him,"  etc. 

The  trial  judge  assigned  the  following  reasons  for  his  rul- 
ing, viz.:  (1)  That  it  "  was  manifest  to  the  court,  from  all 
the  circumstances  surrounding  the  motion,  that  the  same  was 
made  for  the  purpose  of  delay."  (2)  '•  That  the  court  was 
satisfied  that  a  fair  and  impartial  trial  could  be  had  at  the 
present  term  of  the  court,  and  that  there  was  no  prejudice 
against  the  accused  in  the  public  mind  sufficient  to  influence 
his  trial.  It  is  oonclusively  shown  by  the  answers  of  the  jurors 
of  the  regular  panel  that  they  were  unprejudiced  and  compe- 
tent under  the  law.  That  this  motion  is  fatally  defective  in 
failing  to  show  by  its  recitals  that  a  fair  trial  could  be  had  at 
the  term  to  which  it  is  sought  to  postpone  the  case.  On  the 
face  of  the  motion,  had  it  been  granted,  no  substantial  relief 
would  have  been  accorded  the  mover,  since  it  is  not  shown 
that  the  alleged  prejudice  existed  in  the  public  mind,"  etc. 
During  the  progress  of  the  trial  of  this  motion,  the  following 


STATE  V.  AI«HIRE. 


459 


bill  of  exceptions  was  taken,  and  it  makes  the  following  rela- 
tion of  facts,  viz.:  "  Which  motion,"  fully  setting  out  the 
grounds  of  his  affidavit  for  a  continuance,  and  appending 
thereto  a  supplemental  statement  of  the  facts  the  defendant 
proposed  to  prove  in  aid  of  his  afllidavit  for  a  continuance, 
"  having  been  called  for  trial,  counsel  for  defendant  moved  for 
a  note  of  evidence  to  be  opened,  and  proof  adduced  in  support 
of  said  motion,"  etc.  This  was  objected  to  on  the  part  of  the 
state;  and  the  court  sustained  the  objection  on  the  grounds, 
viz.:  "  If  the  motion  had  any  merit,  it  is  amply  sustained  by 
its  own  allegations,  and  affidavit  thereto;  and  evidence  aliunde 
would  make  it  no  stronger.  It  has  long  been  settled  jurispru- 
dence in  this  state  that  the  facts  stated  in  an  affidavit  in  sup- 
port of  a  motion  for  continuance  must,  for  the  purposes  of  the 
motion,  be  taken  as  true.  /State  v.  Moultrie,  33  La.  Ann.  1146; 
State  V.  Bold8,  37  La.  Ann.  312." 

We  hav'e  taken  these  two  bills  of  exceptions  together,  for 
the  purpose  of  more  easily  examining  and  deciding  the  ques- 
tions therein  raised.  Taking  up  the  proposition  first  stated, 
though  last  decided,  we  find  thaX  State  v.  Moultrie,  33  La.  Ann. 
114G,  and  State  v.  Holds,  37  La.  Ann.  312,  support  the  ruling 
of  the  trial  judge.  And  the  rule  is  elaborated  in  State  v. 
Simien,  SO-  La.  Ann.  296,  and  announced  in  precise  terms,  thus: 
"  The  rule  is  that  the  affidavit  of  the  accused,  upon  which  is 
grounded  his  motion  for  a  continuance,  is,  for  the  purposes  of 
the  motion,  to  be  taken  as  true,  and  no  counter  affidavit  can 
be  received,  nor  can  the  statements  or  facts  it  contains  be  con- 
tradicted by  a  cross-examination,  or  aliunde  proof;  and  this  rule 
is  of  such  universal  acceptance  that  we  are  not  inclined  to  mod- 
ify it.    1  Archb.  Cr.  Prac,  p.  569,  et  scq." 

This  is  an  ancient  and  well-established  rule  of  the  common 
law,  and  we  will  not  make  a  departure  from  it.  But  while 
the  judge  correctly  adhered  to  this  rule,  and  declined  to  hear 
any  extraneous  proof  in  support  of  the  motion,  because  of  tiie 
fact  that  the  recitals  of  the  affidavit  and  motion  must,  for  the 
purposes  of  the  application,  be  taken  as  true,  he  was  not 
iDconsi:5tent  in  ruling  that  the  defendant  was  not  entitled  to  a 
continuance  on  the  grounds  he  assigned  for  thus  ruling.  It  was 
clearly  within  the  judge's  sound  legal  discretion  to  disallow  a 
continuance  when,  from  the  circumstances  surrounding  the 
application,  he  believed  it  was  made  for  the  purpose  of  delay. 


1  il 


460 


AMERICAN  CRIMINAL  REPORTS. 


It  was  equally  within  his  discretion  to  refuse  a  continuance, 
the  application  for  which  failed  to  disclose  that  a  fair  and 
impartial  trial  could  be  had  at  the  term  of  court  to  which  it 
was  proposed  to  defer  it.  The  existence  of  popular  excite- 
ment against  the  accused  is  not  a  suiRcient  cause  for  the 
postponement  of  a  trial  unless  it  be  sufficient  "  to  intimidate 
and  swerve  the  jury."  Mr.  Bishop  states  the  rule  thus: 
"Continuances  are  frequently  applied  for  on  the  ground  tliat 
the  public  mind  is  excited  against  the  party,  so  that  he  can 
not  now  have  a  fair  trial,  which  he  nia}'^  when  the  excitement 
subsides.  In  some  circumstances,  this  appeal  to  the  judicial 
discretion  is  successful.  *  *  *  Nor  is  mere  excitement 
alone,  in  ordinary  cases,  especially  in  cases  not  of  a  public 
character,  deemed  adequate."  1  Bish.  Cr.  Proc,  §  951b;  Thomas 
V.  State,  27  Ga.  2S7;  Tlwmpmn  v.  State,  24  Ga.  297.  And 
Mr.  Wharton  says :  "  A  continuance  may  also  be  granted  on 
affidavit  showing  that  means  had  heen  improperly  taken  to 
influence  the  jury,  and  the  puhlio  at  large,  so  as  to  prevent,  at 
that  time,  an  impartial  trial;  and  that  the  public  excitement 
was  such  as  to  intimidate  and  swerve  the  jury.  [Our  italics.] 
But  the  fact  of  ordinary  newspaper  paragraphs  existing  on  the 
subjeci  is  not  enough."  Whart.  Cr.  PI.,  §  508.  In  the  first 
place,  the  defendant's  motion  does  not  state  that  "means  had 
been  taken  improperly  to  influence  the  jury,"  so  as  to  prevent, 
at  tlie  time,  a  fair  and  impartial  trial,  nor  does  it  state  that  the 
public  excitement  was  such  as  to  "  intimidate  and  swerve  the 
jury; "  the  statement  being  "  that  it  was  impossible  at  [the  then] 
term  of  the  court  to  obtain  a  fair  and  impartial  trial,  due  to 
said  excitement  and  prejudice  existing  against  him,"  etc.  But 
we  have  the  contrary  statement  of  the  trial  judge,  to  the  eifect 
that  it  was  "  conclusively  shown  by  the  answers  of  the  jurors 
of  the  regular  panel  that  they  were  unprejudiced,  and  compe- 
tent under  the  law; "  thus  putting  the  defendant's  case  outside 
of  the  rule  announced  by  either  Bishop  or  Wharton.  Again, 
the  trial  judge  appears  to  have  properly  and  judiciously  exer- 
cised his  discretion  in  refusing  a  continuance  of  the  cause  to 
another  term. 

The  next  and  last  bill  of  exceptions  relates  to  the  refusal  of 
the  judge  to  grant  a  change  of  venue.  The  bill  relates  that 
the  district  attorney,  following  the  rule  that  was  recognized 
in  State  v.  Causey ^  43  La.  Ann.  897,  9  South.  900,  suggested  to 


STATE  V.  ABSHIRE. 


461 


the  court  that  the  jurors  of  the  regular  panel  be  put  upon 
their  voir  dire,  and  interrogated  upon  the  subject  of  undue 
excitement  and  prejudice  against  the  accused.  And  the  judge 
relates  that  this  course  "  was  adopted  by  the  court  without 
objection  from  the  defendant's  counsel; "  and  that  "  this  test 
showed  conclusively,  and  to  the  satisfaction  of  the  court,  that 
the  regular  jurors  were  competent  to  try  the  case  fairly  and 
impartially."  In  the  Causey  case  we  said :  "  The  fact  that  a 
fair  and  impartial  jury  has  been  obtained  pending  the  motion 
for  a  change  of  venue  has  been  held  to  be  an  answer  to  the 
affidavit  therefor; "  citing  the  .authorities.  "  Indeed,  ah  aotu 
ad  posse,  valet  consecutio;  the  actuality  of  a  fact  demonstrates 
the  possibility  of  its  existence."  Wo  observe  that  the  brief 
of  defendant's  counsel  does  not  discuss  this  question,  but  we 
have  adverted  to  it  because  it,  in  our  opinion,  confirms  the  cor- 
rectness of  the  conclusions  of  the  trial  judge  in  reference  to 
his  discretion  to  grant  a  continuance.  We  have  gone  over 
all  the  questions  that  are  propounded  by  the  defendant's  bills 
of  exception  without  discovering  any  error  in  the  ruling  of 
the  judge.    Judgment  affirmed. 


Note.— Conftnwancc — Denial  of  continuance  upon  admissions  by  the  pros- 
ecution. Right  of  accused  to  meet  witnesses  face  to  face.  — An  admission 
by  tlie  prosecution  that  witnesses  for  whom  a  continuance  is  desired  would 
testify  aa  alleged  if  they  were  present,  has  been  held  sufficient  in  the  follow- 
ing cases:  Comerford  v.  State,  23  Ohio  St.  599;  State  v.  Hatfield,  73'  Mo. 
518;  Hamilton  r.  State,  33  Ind  553;  Lea  v.  State,  64  Miss.  294. 

In  State  v.  Mooney,  10  Iowa,  506,  a  refusal  of  continuance  was  held 
proper  ou  an  admission  that  if  the  witnesses  were  present  defendant  could 
*'  prove  by  tliem  his  previous  good  character." 

In  Illinois  a  statute  providing  that  the  prosecuting  attorney  shall  not  be 
required  to  admit  the  absolute  truth  of  the  matter  set  up  in  an  affidavit  for 
a  continuance  in  order  to  prevent  the  continuance  for  a  material  witness, 
but  only  that  such  witness,  if  present,  would  testify  as  alleged  in  the  affi- 
davit, was  in  question  in  Hoyt  v.  People,  140  111.  583,  and  it  was  held  that 
the  denial  of  a  continuance  under  this  statute  on  an  application  made  at 
the  second  term  was  in  the  discretion  of  the  court. 

The  court  cites  this  case  with  approval  in  the  recent  case  of  Keating  v. 
People,  160  111,  480. 

The  later  Indiana  cases  overrule  the  decision  in  Hamilton  v.  State,  82 
Ind.  553,  and  require  an  unconditional  admission  of  the  truth  of  the  facts 
which  the  witness  is  desired  to  prove  as  a  condition  of  denying  a  contin- 
uance, basing  this  decision  on  the  constitutional  right  of  the  accused  to 
"  meet  the  witnesses  face  to  face  and  to  have  compulsory  process  for 
obtaining  witnesses  in  his  favor."  McLaughlin  v.  State,  8  Ind.  281;  Miller 
V.  State,  9  lad.  310;  Wasaels  v.  State,  26  Ind.  85.    The  Supreme  Court  of 


rpnjp 


U 

vi 


1 


'  '■:! 


V5 


II 

lis. 


ps" 


402 


AMERICAN  CRIMINAL  REPORTS. 


MiHSOuri  has  established  the  doctrine  that  an  admission  by  the  prosecuting 
attorney  tliat  an  absent  witness,  if  present,  would  testify  as  set  furtli  in  un 
ailldavit  for  a  continuance  can  not  l)e  made  by  statute  a  sufficient  ground 
for  refusing  the  continuance  under  a  constitutional  provision  that  tiie 
accused  shall  have  the  right  "  to  have  process  to  compel  the  attendance  of 
witnesses  in  his  behalf."  State  v.  Berkley,  10  West.  Rep.  67;  03  Mo.  41; 
State  V.  Dawson,  6  West.  Rep.  401,  90  Mo.  149;  State  v.  Neider,  13  West. 
Rep.  128,  94  Mo.  79;  State  v.  Warden,  14  West.  Rep.  490,  94  Mo.  648;  State 
V.  Dyke,  96  Mo.  298;  State  v.  Loe,  98  Mo.  600. 

So  in  Texas,  the  admission  must  be  of  the  facts  which  the  absent  wit- 
nesses are  derured  to  give  evidence  upon.  Hyde  v.  State,  ,16  Tex.  457;  De 
Warren  v.  State,  29'Tex.  464. 

An  affidavit  for  a  continuance  on  account  of  the  absence  of  a  material 
witness,  an  admission  by  the  prosecution  tliat  the  "  facts  are  true,"  which 
witness  would  testify  to  if  present,  is  made  necessary  by  a  statute  of  Ken- 
tucky, in  order  to  prevent  a  continuance  for  a  material  witness.  Pace  v. 
Com.,  11  Ky.  L.  Rep.  407;  O'Brien  v.  Com.,  Id.  584. 

In  People  v.  Brown,  59  Gal.  845,  the  refusal  to  postpone  a  trial  for  an 
absent  witness  wob  held  not  error  where  the  district  attorney  admitted  the 
fact.    See  also  People  v.  Dodge,  28  Cal.  445. 

How  far  the  state  is  bound  by  the  admission, — As  the  prosecution  simply 
admits  that  if  the  witness  were  present,  he  or  she  would  testify  as  stated  in 
the  affidavit,  this  admission  does  not  prevent  the  state  from  giving  evidence 
to  contradict  such  alleged  facts.  Olda  v.  Com.,  8  A.  K.  Marsh.  465;  State 
V.  Miller,  67  Mo.  604. 

It  has  been  decided  that  the  credibility  of  absent  witnesses  can  not  be 
impeached  where  there  has  been  an  admission  that  if  present  they  would 
testify  to  certain  alleged  facts.  Dominges  v.  State,  7  Smedes  «&  M.  475,  45 
Am.  Dec.  815.  We  can  perceive  no  good  reason  for  such  a  rule.  In  Miss- 
issippi this  rule  was  altered  by  statute  so  as  to  give  the  affidavit  only  the 
effect  that  the  witness'  testimony  would  have  if  he  was  present.  Brent  v. 
Heard,  40  Miss.  370. 

Motion  in  arrest  of  judgment. — A  motion  in  arrest  of  judgment  lies  only 
for  such  errors  as  are  apparent  on  the  face  of  the  record,  or  for  some  matter 
which  ought  to  appear  of  record,  but  does  not.  State  v.  O'Brien,  18  R.  I. 
478;  U.  S.  V.  Kilpatrick,  16  Fed.  Rep.  765;  State  v.  Lanier,  90  N.  C.  714.  But 
the  errors  which  would  justify  a  motion  of  this  sort  must  be  errors  of 
substance,  and  not  merely  clerical  or  formal  mistakes.  According  to  Black- 
stone,  "  arrests  of  judgment  arise  from  intrinsic  causes  appearing  upon  the 
face  of  the  record."  8  Bl.  Comm.*898.  As  a  general  rule,  any  defect  of 
substance  which  would  be  fatal  on  general  demurrer  may  bo  taken  advantage 
of  after  verdict,  by  motion  in  arrest  of  judgment;  but  judgment  will  not  be 
arrested  for  defects  in  the  proceedings  which  are  merely  formal.  Such 
defects  are  amendable  in  Rhode  Island  under  Pub.  St.  R.  I.,  c.  248,  §  4.  See 
Whart.  Grim.  Pi.  (8th  Ed.),  §§  760-762;  State  v.  Paul,  5  R.  I.  185,  189; 
State  V.  Corbett,  12  R.  I.  289,  293. 

The  plea  of  nolo  contendere,  interposed  by  the  defendant,  like  a  demurrer, 
admits,  for  the  purposes  of  the  case,  all  the  facts  which  are  well  pleaded; 
that  is  to  say,  it  is  a  confession  of  guilt,  so  far  as  this  particular  case  is 
concerned,  and  places  the  defendant  in  the  same  position,  for  the  purposes 


STATE  V.  ZEIGLER. 


463 


of  tills  motion,  as  though  he  had  pleaded  guilty,  or  been  found  guilty  by  the 
verdict  of  a  jury.     State  v.  O'Brien,  supra. 

Where  an  indictment  is  returned  by  the  grand  jury  "  a  true  bill,"  and 
gets  forth  in  apt  language  the  crime  charged,  the  record  need  not  show, 
independently  of  such  indictment,  that  an  indictment  was  presented  against 
defendant,  and  that  it  was  returned  "  a  true  bill,"  and  set  forth  the  offense 
charged.    Id. 

Leave  to  withdraw  plea  of  guilty  discretionary  with  court. — A  motion  in 
a  criminal  case  to  withdraw  a  plea  of  guilty,  and  to  substitute  therefor  one 
of  not  guilty,  is  addressed  to  the  discretion  of  the  court,  and,  consequently, 
the  court's  action  is  not  the  subject  of  error.     Clark  v.  State,  57  N.  J.  L.  489. 

Defendant  in  this  case  was  indicted  for  misdemeanor.  In  cases  of  felony 
of  a  grave  nature,  and  especially  in  capital  rases,  if  the  prisoner  was 
influenced  to  enter  the  plea,  either  by  his  own  attorney  or  by  the  prosecu- 
tion, or  by  act  of  the  court,  he  ought  to  be  accorded  the  right  of  trial  by  a 
jury,  unless  it  has  become  impossible,  by  reason  of  the  delay,  to  introduce 
the  testimony  of  a  material  witness. 


'MM  '^ 


JUSTIHABLB     HOMICIDE ! 


State  v.  Zeiglkr. 

(40  W.  Va.  593.) 

Misleading  Instructions  —  Sufficiency  of  Evi- 
dence. 


1.  To  reduce  homicide  in  self-defense  to  excusable  homicide,  it  must  be 

shown  that  the  slayer  was  closely  pressed  by  the  other  party,  and 
retreated  as  far  as  he  conveniently  or  safely  could,  in  good  faith,  with 
the  honest  intent  to  avoid  the  violence  of  the  assault. 

2.  Where  oue,  without  fault  himself,  is  attacked  by  another,  in  such  a 

manner  or  under  such  circumstances  as  to  furnish  reasonable  grounds 
for  apprehending  a  design  to  take  away  his  life  or  to  do  him  some  great 
bodily  harm,  and  there  is  reasonable  ground  for  believing  the  danger 
imminent  that  such  design  wil'  "re  accomplished,  and  the  person 
assaulted  has  reasonable  ground  tc  '.blieve,  and  does  believo,  such  dan- 
ger is  imminent,  he  may  act  upon  such  appearances,  and  w\thout 
retreating,  kill  his  assailant. 

8.  It  is  error  in  a  court,  in  a  case  of  felony,  to  give  to  the  jury  instruc- 
tions which  are  not  relevant  to  the  evidence,  and  which  may  mislead 
the  jury  to  the  prejudice  of  the  defendant. 

4.  If  there  be,  in  the  opinion  of  the  jury,  a  substantial  conflict  in  the  evi- 
dence, or  circumstances,  as  to  whether  the  killing  was  done  in  self-de- 
fense, and  the  circumstances  or  other  evidence  preponderate  in  favor  of 
self-defense,  or  if  it  was  equally  balanced  as  to  the  killing  being  done 
in  self  defense,  the  jury  ought  not  to  convict  either  of  murder  or  man- 
slaughter. 

6.  Where  a  court  which  tries  a  cause  certifies  all  the  evidence  adduced  on 


■tM\ 


^ :   V  'El 
■    '(.  '  ■;* 


n 


'4\ 


iQi 


AMERICAN  CRIMINAL  REPORTS. 


11^ 


the  trial,  and  from  the  evirlonce  so  certiflpd  It  clearly  apnoara  tlint  It 
was  wholly  Insufflcifnt  to  nuHtnin  the  verdirt,  this  court  will  set  usiJe 
the  verdict,  and,  in  a  proper  cuhc,  award  a  new  trial. 

Error  to  Circuit  Court,  Morgan  CountN'. 
lludolph  Zeiglor  was  convicted  of  nmnslau^htor,  and  brink's 
error,     lie  versed. 

D.  B.  Lucas^  for  plaintiff  in  error. 

F.  W.  Brown,  and  Att'i/  Oen.  Riley,  for  the  State. 

Enolisii,  J.  At  the  April  term  of  the  Circuit  Court  of 
Morgan  County,  in  the  year  1S94,  the  grand  jury  of  said  comity 
found  an  indictment  against  lludolph  Zeigler,  charging  that 
on  the  10th  da}'  of  February,  1804,  in  said  county  of  Morgan, 
he  feloniously,  wilfully,  maliciously,  deliberately,  and  unlaw- 
fully did  slay,  kill,  and  murder  one  John  Sautters,  against  the 
peace  and  dignity  of  the  State. 

The  plea  of  not  guilty  was  interposed,  issue  joined  thereon, 
and  the  case  was  submitted  to  a  jury  on  the  1st  day  of  May, 
l>!9-i,  which  resulted,  on  the  9th  day  of  the  same  month,  in  a 
verdict  of  not  guilty  of  murder  as  charged  in  the  indictment, 
but  guilty  of  voluntary  manslaughter.  A  motion  was  made 
in  arrest  of  judgment,  and  for  a  new  trial,  which  motions,  hav- 
ing been  argued,  were  overruled  by  the  court,  and  the  prisoner 
excepted.  Judgment  was  rendered  upon  the  verdict,  and  the 
prisoner  was  sentenced  to  confinement  in  the  penitentiary  for 
the  period  of  two  years,  and  the  prisoner  obtained  this  writ 
of  error. 

Self-defense  was  relied  on  by  the  prisoner,  and  it  appears 
from  bill  of  exceptions  No.  8,  that  after  the  evidence  was  con- 
cluded, and  before  the  argument  commenced,  the  prisoner,  by 
his  counsel,  prayed  the  court  to  give  the  jury  the  following 
instructions :  Instruction  No.  1  for  defendant :  "  The  court 
instructs  the  jury  that  if,  from  the  evidence,  the  jury  be  of 
opinion  that  there  is  a  substantial  conflict  of  the  evidence  or 
circumstances  as  to  whether  the  killing  was  done  in  self-defense, 
and  the  circumstances  or  other  evidence  preponderate  in  favor 
of  self-defense,  or  if  it  was  equally  balanced  as  to  the  killing 
being  done  in  self-defense,  the  jury  can  not  convict  the  pris- 
oner either  of  murder  or  manslaughter."  Instruction  No.  2 : 
"  The  court  instructs  the  jury  that  the  owner  of  property,  in 


m 


STATE  V.  ZEIQLER. 


465 


the  possession  of  the  same,  has  the  right  to  use  as  much  force 
as  is  nocossary  to  prevent  a  forcible  trespass;  and  if  they  find 
that  the  defendant  was  standing  upon  his  own  ground,  and 
that  in  attempting  to  force  a  passage  over  the  same,  if  they  so 
find,  the  deceased  was  violating  the  law,  and  was  a  trespasser, 
witii  the  intent  and  with  the  means  to  commit  a  felony  if 
necessary  to  accomplish  the  end  intended,  then  the  defendant, 
as  owner  of  the  property,  if  they  so  find,  might  repel  force  by 
force,  to  the  extent  of  killing  the  aggressor,  and  such  killing 
would  be  self-defense."     Instruct!. sa  No.   3:     "The  court 
instructs  the  jury  that  a  party  who  is  assailed  by  his  adversary 
with  a  deadly  weapon  is  not  compelled  to  retreat,  but  may 
slay  his  adversary,  if  the  assault  be  solierce  as  not  to  allow  the 
party  assailed  to  retreat  without  manifest  danger  to  his  life, 
or  enormous  bodily  injury.     In  such  case,  if  there  b^^  no  other 
way  of  saving  his  own  life,  he  may,  in  self-defense,  kill  his 
assailant."    Instruction  No.  4 :    "  The  court  instructs  the  jury 
that  if,  when  the  deceased  fired  the  fatal  shot,  he  was  not  the 
aw'Tcssor,  but  was  assailed,  and  such  demonstrations  of  force, 
with  a  deadly  weapon  and  otherwise,  made  against  him  as  to 
lead  a  reasonable  man  to  suppose  he  was  in  danger  of  death 
or  great  bodily  harm,  and  under  such  reasonable  apprehension 
he  killed  the  deceased,  who  was  assailing  him,  if  they  so  find, 
then  the  killing  was  justifiable,  in  self  defense."    Which  in- 
structions were  objected  to  by  the  Stafe,  and  the  court  declined 
to  give  them,  and  the  prisoner  excepted;  and  the  court,  on  its 
own  motion,  gave  to  the  >ury,  in  lieu  of  said  instructions,  the 
following :    Instruction  No.  1 :    "  The  court  instructs  the  jury 
that  when  one,  without  fault  himself,  is  attacked  by  another 
in  such  a  manner  or  in  such  circumstances  as  to  furnish  rea- 
sonable grounds  for  apprehending  a  design  to  take  away  his 
life  or  to  do  him  some  great  bodily  harm,  and  there  are  reason- 
able grounds  for  believing  the  danger  imminent,  that  such 
design  will  be  accomplished,  and  the  person  assaulted  has 
reasonable  grounds  to  believe,  and  does  believe,  that  such 
danger  is  imminent,  he  may  act  upon  such  appearance,  and, 
without  retreating,  kill    his  assailant,  if    he  has  reasonable 
grounds  to  believe,  and  does  believe,  that  such  killing  is  neces- 
sary in  order  to  avoid  the  apparc  it  danger;  and  the  killing, 
under  such  circumstances,  is  excusable,  although  it  may  after- 
80 


i»yi 


'k  ^C 


466 


AMERICAN  CRIMINAL  REPORTa 


wards  turn  out  that  the  appearances  were  false,  and  there  was 
in  fact  neither  design  to  do  him  serious  injury,  nor  danger  that 
it  would  be  done.  But  of  this  the  jury  must  judge,  from  all 
the  evidence  and  circumstances  in  the  case."  No.  2:  "And 
the  court  further  instructs  the  jury  that  as  to  the  imminencv 
of  the  danger  which  threatened  the  prisoner,  Eudolph  Ziegler, 
and  the  necessity  of  his  killing  John  Sautters,  in  the  first  in- 
stance, the  prisoner  is  the  judge,  but  he  acts  at  his  peril,  as  the 
jury  must  pass  upon  his  action  in  the  premises,  viewing  said 
actions  from  the  prisoner's  standpoint  at  the  time  of  the  killing, 
and  if  the  jury  believe,  from  the  facts  and  circumstances  in  the 
case,  that  the  prisoner  had  reasonable  grounds  to  believe,  and 
did  believe,  the  danger  imminent,  and  that  the  killing  was 
necessary  to  preserve  his  own  life,  or  to  protect  him  from  great 
bodily  harm,  he  is  excusable  for  using  a  deadly  weapon  in 
defense,  otherwise  he  is  not."  No.  3 :  "  The  court  instructs 
the  jury  that,  on  a  trial  for  murder  where  a  deadly  weapon  is 
used,  if  the  prisoner  relies  on  self-defense,  the  burden  of  proof 
is  on  the  prisoner,  and  he  must  excuse  himself  by  a  preponder- 
ance of  the  evidence."  No.  -4 :  "  The  court  instructs  the  jury 
that  the  defendant  is,  by  law,  presumed  to  be  innocent,  and  it 
is  the  duty  of  the  State  to  prove  him  guilty,  as  charged  in  the 
indictment,  beyond  all  reasonable  doubt;  and,  if  the  State  fails 
to  prove  every  material  allegation  in  the  indictment,  then  the 
jury  must  find  him  not  gin)t3\" 

The  court  also,  at  the  instance  of  the  State,  gave  the  jury 
the  fcilowing  instructions,  which  were  excepted  to  by  the 
prisoner.  The  exceptions  were  overruled  by  the  court. 
Instruction  No.  1 :  "  The  court  instructs  the  jury  that  under 
an  indictment  for  murder  the  jury  may  find  the  prisoner 
guilty  of  murder  in  the  first  degree,  or  guilty  of  murder  in 
the  second  degree,  or  guilty  of  voluntary  manslaughter, 
or  guilty  of  involuntary  manslaughter,  or  not  guilty." 
Instruction  No.  2 :  *'  The  court  instructs  the  jury  that, 
where  a  homicide  is  proven,  the  presumption  is  that  it  is 
murder  in  the  second  degree.  If  the  State  would  elevate  it 
to  murder  in  the  first  degree,  she  must  establish  the  charac- 
teristics of  that  crime;  and,  if  the  prisoner  would  reduce  it  to 
manslaughter,  the  burden  of  proof  rests  upon  him  to  establish 
the  same  by  preponderance  of  evidence."  Instruction  No.  3 : 
"  The  court  instructs  the  jury  that  if  they  believe  from  the 


m^ 


STATE  V.  ZEIGLER. 


467 


evidence  that  John  Sautters  came  to  his  death  by  a  pistol 
shot  wound  inflicted  by  Kudolph  Zeigier,  and  at  the  time  he 
was  so  killed  the  said  John  Sautters  was  in  the  exercise  of  a 
right  that  belonged  to  him,  of  passing  along  a  private  right 
of  way,  and  that  Rudolph  Zeigier  at  said  time  was  wrongfully 
preventing  his  passage  along  said  right  of  way,  and  in  so 
doing,  wilfully  and  maliciously,  deliberately  and  premedita- 
tedly,  inflicted  the  wound  by  which  said  Sautters  came  to  his 
death,  then  he  is  guilty  of  murder  in  the  first  degree."  In- 
struction No.  4 :  "  The  court  instructs  the  jury  that  where 
there  is  a  quarrel  between  two  persons,  and  both  are  in  fault, 
and  as  a  result  of  such  quarrel  a  combat  takes  place,  and 
death  ensues,  in  order  to  reduce  the  offense  from  the  degree 
of  murder  two  things  must  appear  from  the  evidence  and  cir- 
cumstances of  the  case :  (1)  That  before  the  mortal  wound 
was  given  the  prisoner  declined  further  combat,  and  retreated 
as  far  as  he  could  with  safety;  and  (2)  that  he  necessarily 
killed  the  deceased  in  order  to  save  his  own  life,  or  to  protect 
himself  from  great  bodily  harm."  Instruction  No.  5 :  Same 
as  last  one.  Instruction  No.  6 :  "  The  court  instructs  the 
jury  that  a  man  shall  be  taken  to  intend  that  which  he  does, 
or  which  is  the  immediate  or  necessary  consequence  of  his  act; 
and  if  the  jur}-^  believe  from  the  evidence  in  the  case  that 
Rudolph  Zeigier.  the  prisoner,  with  a  deadly  weapon  in  his 
(prisoner's)  possession,  without  any,  or  upon  very  slight,  prov- 
ocation, gave  to  the  deceased,  John  Sautters,  a  mortal  wound, 
then  said  Zeigier,  is  prima  facie  guilty  of  wilful,  deliberate, 
and  premeditated  killing,  and  throws  upon  the  prisoner  the 
necessity  of  proving  extenuating  circumstances,  and  that 
unless  the  prisoner  has  proved  such  extenuating  circumstances, 
or  such  circumstances  arise  out  of  the  case  made  by  tho 
State,  the  j  ury  must  find  the  prisoner  guilty  of  murder  in  the 
first  degree." 

The  prisoner  moved  the  court  to  set  aside  the  verdict  of  the 
jury,  which  motion  was  overruled  by  the  court,  and  the  evi- 
dence was  certified  in  a  bill  of  exceptions. 

The  first  errr  *  assigned  and  relied  upon  by  the  prisoner  is 
as  follows :  "  (1)  It  was  error  not  to  arrest  the  judgment 
and  grant  him  a  new  trial."  The  evidence  clearly  established 
that  the  petitioner  acted  strictly  in  self-defense,  and  the  homi- 
cide was  therefore  excusable.    There  was  but  one  witness  for 


fc'^r' 


I    I 


■^ir-i 


^il 


MM 'A 


Si:' 


!  r  1i 


468 


AMERICAN  CRIMINAL  REPORTS. 


the  State  whose  testimony  made  out  a  case  of  murder  or  man- 
slaughter, and  that  was  Christian  Baurle.  Upon  the  contrary, 
three  other  witnesses  who  were  present — the  prisoner,  his  son 
William,  and  his  wife,  Louisa  Zeigler — all  contradict  Baurle, 
and  their  testimony  tends  to  establish  a  case  of  self-defense, 
and  to  show  that  Baurle  and  the  deceased,  Sautters,  were  the 
aggressors;  that  Baurle  assaulted  Zeigler  first,  and  Sautters 
followed  it  up  by  snapping  his  musket  at  him,  and  then  club- 
bing the  gun  and  striking  him,  with  the  butt  end,  a  severe 
blow,  leaving  a  scar  still  plainly  visible.  His  evidence  is  con- 
firmed by  Dr.  Green,  who  dressed  and  probed  the  petitioner's 
wound  and  proves  that  it  was  inflicted  by  some  blunt  instru- 
ment. The  State  itself  Introduced  a  witness  (the  wife  of  the 
deceased)  who  proved  that  she  distinctly  saw  something  raised 
up  in  the  air  like  the  butt  of  a  gun.  It  is  plain,  therefore, 
that  the  jury  found  against  the  weight  of  evidence,  and  this 
verdict  should  have  been  set  aside  and  a  new  trial  granted. 

This  assignment  of  error  calls  for  an  investigation  of  the 
feeling  existing  between  the  prisoner  and  the  deceased,  and 
the  immediate  circumstances  surrounding  the  parties,  at  the 
precise  moment  when  the  fatal  shot  was  fired.  Trouble  existed 
between  the  deceased  and  the  prisoner  in  regard  to  a  road 
which  the  prisoner  claimed  was  a  private  road,  and  which  the 
deceased  claimed  was  a  public  road.  In  pursuance  of  his 
claim,  prisoner  had  obtained  an  injunction  restraining  the  use 
of  said  road  as  a  public  road.  On  the  day  the  shooting 
occurred,  the  deceased  was  evidently  apprehensive  of  some- 
thing which  might  not  only  require  a  witness,  but  also  the  use 
of  a  gun.  He  told  Baurle  he  was  going  to  the  store,  but  it 
must  be  regarded  as  an  unusual  occurrence  to  carry  a  musket 
when  merely  going  to  the  store.  The  testimony  shows  that 
said  Baurle  and  Sautters  had  been  on  the  prisoner's  premises 
on  the  15th  day  of  July  previous,  with  two  other  men,  all 
armed  with  guns,  and  cut  down  the  bars  which  Zeigler  (the 
prisoner)  had  constructed  across  this  road.  Sautters  called  on 
his  friend  and  neighbor,  Baurle,  who  claimed  this  road  as  an 
outlet  from  his  farm,  to  accompany  him  as  a  witness,  saying 
that  prisoner  stopped  him  before,  and  he  would  like  to  have 
some  one  go  along  with  him.  When  deceased,  carrying  his 
gun,  arrived  at  prisoner's  premises,  he  found  hira  engaged  in 
hauling  out  manure.    Prisoner  and  his  son  came  out  of  his 


•  ^i^. 


STATE  V.  ZEIGLER. 


4G9 


barnyard,  and  prisoner  told  deceased  he  had  an  injunction  on 
that  road,  and  that  they  should  not  travel  it  any  more. 
Baurle  says  he  told  him,  "  All  right,"  but  heard  Sautters  say, 
"  It  is  our  road,  and  we  are  going  to  travel  it."  That  Zeigler 
came  up  pretty  close  to  him.  He  stood  still.  Zeigler  stood 
right  in  front  of  him,  two  or  three  feet  away.  Witness  told 
him,  "Better  stop  that;"  he  did  not  want  to  see  any  blood- 
shed on  this  place.  That  Zeigler  struck  him  first,  about  his 
body,  with  his  fist.  That  he  struck  back;  struck  Zeigler  on 
his  head;  gave  him  the  mark  he  got  on  his  head.  Sautters 
was  four  or  five  steps  away.  Zeigler's  son  came  up  and  took 
hold  of  witness,  and  shoved  him  back  on  a  bank  at  the  side  of 
the  road.  When  witness  raised  up  and  turned  around,  Zeig- 
ler shot  him  in  the  arm.  Witness  then  turned  and  ran.  Saw 
Sautters  as  he  passed.  He  had  his  gun  on  his  arm.  Was 
doing  nothing.  It  was  an  old  army  gun.  This  only  lasted 
from  five  to  eight  seconds.  Witness  was  running  away,  and 
did  not  see  the  parties  when  the  fatal  shot  was  fired.  Saw 
Zeigler  point  pistol  toward  Sautters.  Saw  no  blood  on  Zeig- 
ler's face  after  he  struck  him.  This  is,  in  substance,  the  tei  ' 
raony  of  Baurle,  who  went  with  Sautters  for  the  purpose  of 
being  a  witness. 

William  Zeigler,  who  was  present,  says,  as  he  came  out  of 
the  barnyard  gate,  Sautters  came  up  with  his  gun  pointed  at 
his  father.  That  Baurle  had  both  hands  in  his  pockets,  but, 
as  Sautters  came  up,  he  out  with  his  left  hand,  and  motioned 
in  front  of  his  father,  and  said,  "  Hold  on,  John,  we  don't 
shed  cold  blood; "  and  his  father,  facing  that  way,  said, "  I 
neither" — waving  his  hands  outwaru,  and  had  nothing  in  his 
bands.  Sautters  still  advanced  until  he  held  his  gun  within 
one  and  one-half  feetof  his  father.  Baurle  pulled  his  right  hand 
out  of  his  pocket,  and  struck  witness'  father,  and  witness  came 
around  behind  Baurle,  and  pulled  him  away.  Had  no  more 
than  caught  hold  of  Baurle  than  Sautters  snapped  gun-cap. 
That  he  got  Baurle  away  from  his  father  after  the  cap  snapped. 
Sautters  raised  his  gun  up  and  reversed;  caught  hold  of  barrel 
of  gun,  and  struck  prisoner  over  the  head  with  it,  and  had  gun 
raised  to  bring  it  down  a  second  time  before  prisoner  shot. 
That  Baurle  got  away  from  witness,  and  ran  into  his  father, 
and  wheeled  him  around,  and  prisoner  shot  at  Baurle,  who 
ran.    Sautters  stood  a  little  while  after  he  received  the  first 


'  ! 


' 


I' 
I' 


li?^;'^iil 


m 


il: 


i 


470 


AMERICAN  CRIMINAL  REPORTS. 


shot,  and  was  fixing  at  his  gun,  as  though  putting  another 
cap  on.  He  then  looked  toward  his  house,  and  saw  Baurle 
running,  and  started  and  ran  also  until  he  fell. 

The  prisoner  also  gave  substantially  the  same  statement  as 
to  the  manner  in  which  the  killing  was  done;  stating  that  he 
did  not  shoot  Sautters  until  he  had  struck  him  once  with  the 
gun  over  the. head,  and  was  preparing  to  strike  him  a  second 
time. 

According  to  Baurle's  testimony,  the  prisoner  was  pointing 
his  pistol  at  Sautters  without  his  offering  to  strike  with  the 
gun,  and  he  states  that  the  wound  in  prisoner's  head  was 
caused  by  his  fist;  but  Dr.  Green  states  that  he  found  prisoner 
suffering  with  wound  on  left  side  of  head,  and  also  one  about 
the  ear  or  temple;  thinks  it  was  inflicted  by  coming  in  contact 
with  some  blunt  instrument;  wound  could  have  been  inflicted 
by  gun,  or  instrument  of  that  kind.  And  Mrs.  Sautters,  the 
wife  of  the  deceased,  who  says  she  went  down  to  the  end 
of  the  garden,  and  had  a  good  view,  and  was  near  enough  to 
hear  what  Zeigler  said  to  Baurle  about  the  injunction,  and  on 
cross-examination,  when  asked,  "Did  you  not  say,  in  sub- 
stance, '  In  the  mel6e,  I  distinctly  saw  a  gun  in  the  hands  of 
some  one,  with  butt  or  breech  in  the  air,  overhead  of  par- 
ties '  ? "  answered :  "  I  did  say  that.  I  looked  since,  and  saw 
a  locust  post  that  looked  just  like  that.'  The  witness  Baurle 
further  testifies  that  when  he  ran  he  saw  Zeigler  point  his  ])istol 
toward  Sautters,  and  heard  pistol  cracks  coming  closer  and 
closer  to  him;  seeking  to  create  the  impression  that  Sautters 
was  retreating,  and  the  prisoner  pursuing  him  at  the  time  lie 
was  wounded.  But  that  theory  is  at  once  refuted  by  the  fact 
that  the  evidence  shows  that  Sautit_rs  was  shot  in  the  breast. 
It  is  then  apparent  and  manifest  that  this  witness,  Baurle,  was 
retreating  at  full  speed  at  the  time  the  fatal  shot  was  fired. 
He  was  not  in  a  position  to  say  whether  Sautters  clubbed  his 
gun  and  struck  the  prisoner  over  the  head  with  it  or  not. 
The  prisoner  and  his  son  concur  in  stating  that  Sautters  had 
struck  prisoner  over  the  head  with  his  gun,  and  was  preparing 
for  the  second  stroke  when  he  received  the  fatal  shot;  and  it 
is  evident  there  would  have  been  no  necessity  for  clubbing 
the  gun,  had  he  fired  when  the  cap  bursted. 

Baurle  does  not  mention  the  stroke  inflicted  upon  the  pris- 
oner with  the  butt  of  the  gun,  but  states  that  the  wound  in 


STATE  V.  ZEIGLER. 


471 


Zeigler's  head  was  caused  by  his  fist;  and,  to  place  the  most 
charitable  construction  upon  this  testimony  of  his,  we  must 
say  that  Baurle  did  not  see  or  know  what  transpired  after 
he  received  his  wound  and  hastily  left  the  battle  ground. 
The  fact  that  the  gun  was  clubbed  and  used  at  some  time 
during  the  combat  does  not  rest  alone  upon  the  testimony  of 
the  prisoner  and  his  son,  but  the  wife  of  the  deceased  states 
that  she  saw  the  gun  brandished  above  the  heads  of  the  com- 
batants; and,  unless  it  was  done  after  Baurle  retreated,  it  is 
clear  that  he  suppressed  a  very  material  and  important  fact, 
in  delivering  his  testimony.  That  the  butt  of  the  gun  was 
used  upon  the  head  of  the  prisoner  appears  from  the  fact  that 
the  prisoner  had  a  contusion  on  his  forehead  near  his  eye,  and 
congestion  cf  the  eye,  which  was  evidently  the  result  of  the 
blow  received  from  the  fist  of  Baurle,  while  Dr.  Green,  who 
examined  the  prisoner's  wounds,  says  he  had  one  wound  on 
the  left  side  of  the  head,  and  also  one  about  the  ear  or  temple, 
and  that  the  wound  was  inflicted  by  some  blunt  instrument, 
and  could  have  been  inflicted  by  a  gun,  or  instrument  of  that 
kind.  Again,  Sautters  had  not  been  shot  when  Baurle  passed 
him,  running  avva\'.  Two  things  then  must  have  transpired  in  a 
brief  space  of  time  after  Baurle  passed.  The  gun  was  brand- 
ished, and  Zeigler  received  the  blow,  and  the  fatal  shot  was 
fired  while  Sautters  was  facing  the  prisoner,  because  he 
received  the  wound  in  front,  as  shown  by  the  testimony  of 
Dr.  Ross.  Zeigler  received  the  blow  from  the  gun  on  the  left 
side  of  his  head,  as  it  would  naturally  be  dealt  by  a  right- 
handed  man,  facing  his  adversary.  Sautters  received  the  fatal 
shot  immediately  after  Baurle  passed  him,  for  the  evidence 
shows  that  he  followed  Baurle  and  fell  in  the  road,  only  thirty 
yards  behind  him. 

This  was  the  case  presented  to  the  jury  by  those  who  were 
present  and  had  an  opportunity  of  seeing  what  transpired. 
In  addition  to  this,  Mrs.  Sautters,  the  wife  of  deceased, 
states  that  she  heard  the  prisoner  tell  Baurle  "  they  shouldn't 
travel  that  road,  and  said  something  abou^v  injunction."  She 
also  states  that  prisoner,  after  firing  the  first  shot,  fired  two 
more  shots  at  Baurle  as  he  ran.  Now,  there  can  be  no  ques- 
tion from  the  testimony  that  bad  feeling  existed  between  the 
prisoner  and  the  deceased.  It  appears  from  the  testimony 
of  Isaac  Holton:    That  he  was  invited  to  go  to  Zeigler's, 


1    4' 


:■*■■ 


472 


AMERICAN  CRIMINAL  REPORTS. 


t  ; 
I,' 


ml 


1 


and  was  told  that  Baurle  and  Sautters  wei-e  going  to  open 
this  road.  It  was  then  obstructed  by  bars.  That  he  went, 
and  Sautters  and  Baurle  had  guns.  Zeigler  was  engaged  in 
hauling  hay.  That  Charles  Butte  cut  the  bars  down,  and  he 
and  Zeigler  came  together  in  fighting  attitude,  and  Charles 
Butte  pushed  or  knocked  hira  down.  That  Zeigler  picked  up 
two  rocks,  and  witness  told  hira  not  to  do  that — he  might  get 
hurt,  or  hurt  somebody — and  he  threw  the  stones  down  and 
went  into  his  barnyard.  Subsequent  to  that  time,  the  rec- 
ord discloses  that  repeated  threats  were  made  by  Zeigler  and 
Sautters  on  account  of  the  feeling  existing  in  regard  to  this 
road.  Zeigler  appealed  to  the  law  for  pro  ection  and  obtained 
the  injunction,  of  which  he  gave  Sautte  a  notice  at.  the  time 
he  approached,  on  the  day  the  shooting  occurred. 

The  testimony  in  the  case  discloses  the  deadly  hostility 
entertained  by  the  deceased,  Sautters,  toward  Zeigler.  Ho 
told  Simon  Barsore  that  Zeigler  stopped  him  in  the  road  one 
time,  and  "  if  he'd  stop  him  again  he  would  kill  hira."  Emma 
Young  heard  him  say  he  was  going  to  load  his  gun  heavy  with 
buckshot,  and  be  read}'^  for  Zeigler.  lie  said  to  W.  II.  Poole, 
"  Let  that  ole  booger  stop  me  on  that  road,  and  right  there 
is  where  ho  kills  nie,  or  I  kill  hira."  On  the  day  of  this  fatal 
occurrence  the  deceased  approached  Zeigler  (who  was  at  his 
own  horae,  engaged  in  his  farraing  operations),  carrying  his 
loaded  musket,  ready  cocked,  and  pointed  directly  at  him. 
During  the  struggle  between  Baurle  and  the  prisonf  •  .^eccised 
displayed  his  deadly  intent  by  bursting  the  cap  o  i->  ^(v^;■'.  at 
him;  and,  after  the  prisoner  had  received  a  heavv  »•  oko  aora 
the  fist  of  Baurle,  it  was  followed  by  a  crushing  ;  .rw  on  the 
head  from  the  breech  of  the  gun,  and  the  deceased  was  ])re- 
paring  to  follow  it  up  with  another.  And  it  occurs  to  me 
that,  if  Zeigler  wished  anything  left  in  the  shape  of  self  to 
defend,  the  time  for  action  had  arrived.  It  is  true,  he  was 
carrying  a  revolver,  and,  thinking  the  occasion  had  arrived 
when  it  might  be  used,  he  used  it  with  deadly  effect;  and 
while  it  is  also  true  that  our  statute  prescribed  a  severe  pen- 
alty for  carrying  a  pistol,  yet  it  expressly  excepts  from  such 
penalty  a  person  who  carries  such  weapon  about  his  dwelling 
house  or  premises.  In  Whart.,  Hom.,  under  the  head  of  "  Ex- 
cuse and  Justification  "  (section  480,  note  6),  the  definition  of 
"justifiable  homicide  "  is  stated  thus  (quoted  from  the  opinion 


STATE  V.  ZEIGLER. 


473 


of  Chapman,  C.  J.,  in  the  case  of  Com.  v.  Andrews) :  "  There 
is  still  another  definition  that  needs  to  be  given  to  you,  namely, 
what  constitutes  justifiable  homicide;  for  a  question  may  arise 
here  in  regard  to  that  subject.  It  rests  upon  the  right  of  self- 
defense.  The  law  regards  it  as  a  sacred  right,  and  every  man's 
heart  justifies  the  principle.  If  an  assault  is  made  upon  a 
man,  with  an  attempt  to  commit  a  felony  upon  him,  he  may 
resist,  so  far  as  it  is  necessary  to  resist,  the  assailant,  even  if  he 
must  take  the  assailants  life.  But  this  has  a  limitation.  If 
he  can  resist  the  assault  and  free  himself  without  taking  life, 
and  kills  the  assailant  without  necessity,  he  is  not  excusable. 
If  mere  heat  of  blood  impels  him  to  take  life,  in  such  a  case 
he  is  guilty  of  manslaughter." 

And  in  section  8  of  the  same  work  the  author  says:  "Se 
defemiendo,  or  in  self-defense,  which  exists  where  ono  is  sud- 
denly assaulted,  and  in  the  defense  of  his  person,  where  imme- 
diate and  great  bodily  harm  would  be  the  apparent  consequence 
of  waiting  for  the  assistance  of  the  law,  and  there  is  no  other 
probable  means  of  escape,  he  kills  the  assailant.  To  reduce 
homicide  in  self-defense  to  this  degree,  it  must  be  shown  that 
the  slayer  was  clearly  pressed  by  the  other  party,  and  retreated 
as  far  as  he  conveniently  or  safely  could,  in  good  faith,  with 
the  honest  intent  to  avoid  the  violence  of  the  assault."  The 
law  never  intended,  however,  that  in  the  circumstances  of  this 
case  it  was  the  duty  of  Rudolph  Zeigler,  the  prisoner,  to  run 
away  from  his  home,  or  hide  himself,  when  the  deceased 
(Sautters),  accompanied  by  his  friend  and  witness,  came  with 
their  guns  to  force  their  way  through  this  road.  They  w^ere 
warned  of  the  existence  of  the  injunction  by  Zeigler;  and,  after 
the  difficulty  commenced  between  Zeigler  and  Baurle,  it  must 
be  remembered  tka,t  the  entire  combat  only  lasted,  according 
to  the  testimony,  from  five  to  eight  seconds.  During  that 
period  Zeigler  had  received  a  heavy  blow  on  the  head  from 
the  fist  of  Baurle,  which,  according  to  Baurle's  testimony, 
knocked  Zeigler  away  from  him,  and  turned  him  around. 
Baurle  had  been  pulled  away  and  thrown  back  by  William 
Zeigler  (the  son),  and  had  rushed  again  at  Zeigler,  and  received 
the  shot  in  the  elbow,  and  started  to  run.  Zeigler  fired  two 
shots  in  quick  succession  after  Baurle;  and,  Sautters'  gun  hav- 
ing failed  to  shoot,  he  clubbed  his  gun,  ar  d  struck  Zeigler  over 
the  head,  and  was  raising  it  for  a  second  stroke  when  Zeigler 


mm  ' 


■  f!; 


■uy^.'. } 


prfi 


iU 


AMERICAN  CRIMINAL  REPORTS. 


fired  the  fatal  shot.  Now,  if  we  put  ourselves  in  the  place  of 
Zeigler  for  the  few  seconds  that  this  combat  lasted,  and  con- 
sider that  Baurle  says  he  "  don't  know  how  hard  he  struck, 
and  whether  he  struck  once  or  twice;"  who  states  that  he  is 
a  coward,  "and  if  he  strikes  a  man  he  strikes  him  good;" 
staggered  and  blinded  by  this  blow  on  the  eye  and  forehead, 
he  receives  the  crushing  blow  from  the  butt  of  the  musket  in  the 
hands  of  Sautters — we  may  well  infer  that  the  fierceness  of 
the  assault  from  these  two  men  was  such  as  to  preclude  all 
possibility  of  retreat  with  any  degree  of  safety,  even  if  suffi- 
cient strength  was  spared  him  by  these  paralyzing  strokes. 

In  the  case  of  State  v.  Cain,  20  W.  '.'"a.  680,  this  court  stated 
the  L*w  as  follows:  "Where  one,  without  fault  himself,  is 
attacked  by  another  in  such  a  manner  or  under  such  circum- 
stances as  to  furnish  reasonable  grounds  for  apprehending  a 
design  to  take  away  his  life  or  to  do  him  some  great  bodily 
harm,  and  there  is  reasonable  ground  for  believing  the  danger 
imminent  that  such  design  will  be  accomplished,  and  the  per- 
son assaulted  has  reasonable  grounds  to  believe  and  does 
believe  such  danger  is  imminent,  he  may  act  upon  such  appear- 
ances, and,  without  retreating,  kill  his  assailant,  if  he  has 
reasonable  grounds  to  believe  that  such  killing  is  necessary  in 
order  to  avoid  the  apparent  danger;  and  the  killing  under  such 
circumstances  is  excusable,  although  it  may  afterwards  turn 
out  that  the  appearances  were  false,  and  that  there  was  in  fact 
neither  design  to  do  him  some  serious  injury,  nor  danger  that 
it  would  be  done.  But  of  all  this  the  jury  must  judge  from 
all  the  evidence  and  circumstances  of  the  case."  It  is  proper 
just  here  to  call  attention  to  the  fact  that  the  prisoner  had 
actually  made  no  demonstration  of  any  kind  whatever  towards 
the  deceased  until  after  he  snapped  his  gun  at  him,  and  after 
he  received  the  blow  on  his  head  with  the  breech  of  the  gun. 
Before  that  his  entire  attention  appears  to  have  been  occui)ied 
with  Baurle.  Bishop,  in  his  work  on  Criminal  Law  (volume  1, 
§  805),  states  the  rule  thus:  "  If  one  who  is  assaulted  (we  have 
seen  that  there  must  be  an  overt  act  rendering  the  danger 
imminent),  being  himself  without  fault  in  bringing  on  the  dif- 
ficulty, reasonably  apprehends  death  or  great  bodily  harm  to 
himself  unless  he  kills  the  assailant,  the  killing  is  justifiable." 
Now,  that  the  deceased  started  from  his  home  with  his  loaded 
gun,  with  the  deliberate  intention  of  carrying  out  his  previous 


STATE  V.  ZEIGLER 


475 


threats  by  killing  the  prisoner  i.'  he  came  out  to  him  in  that 
roud,  is  manifest  from  his  subsequent  actions.  Tiirt  iJaurle 
knew  what  his  intention  was  is  shown  by  his  language  when 
Sautters  first  pointed  his  gun  at  the  prisoner — "John,  hold 
on;  don't  shed  cold  blood;"  by  his  snapping  his  gun  at  prisoner 
wliile  engaged  in  combat  with  Baurle;  by  clubbing  his  musket 
and  attacking  prisoner  before  he  had  recovered  from  the 
stunning  blow  received  from  Baurle.  Turning  to  the  conduct 
of  prisoner,  we  find  that  although  the  deceased,  Sautters,  came 
towards  him  in  this  threatening  attitude,  with  his  gun  pointed 
and  hand  about  the  lock,  nothing  in  the  entire  testimony  shows 
that  the  prisoner  made  any  demonstration  towards  the  deceased 
until  after  he  received  the  blow  from  the  musket.  True,  Baurle, 
who  came  there  as  a  witness,  says,  as  he  ran,  he  saw  the  pris- 
oner point  his  pistol  towards  deceased;  but  that  is  met  and 
refuted  by  the  fact  shown  that  Baurle  was  running  towards, 
and  passing  by,  Sautters;  was  wounded  and  frightened  him- 
self; and  the  prisoner  fired  two  shots  after  him  after  he  com- 
menced running.  In  this  connection  we  may  ask,  what  is  the 
law,  as  settled  in  this  state,  where  self-defense  or  other  justi- 
fication is  set  up?  Ilaymond,  P.,  in  the  case  of  /State  v.  Ahhott^ 
8  W.  Va.  7C6,  in  delivering  the  opinion  of  the  court,  said : 
"If  the  circumstances  and  evidence  tend  to  prove  self-defen  ^i, 
or  other  legal  justification,  then,  as  to  the  question  of  whether 
the  act  was  done  in  self-defense  or  other  legal  justification,  if, 
in  the  opinion  of  the  jury,  a  substantial  conflict  of  circum- 
stances or  other  evidence  exists,  there  should  be  such  a  pre- 
ponderance of  circumstances  or  other  evidence  against  the  self- 
defense  or  other  justification  as  to  reasonably  satisfy  the  mind 
of  tiie  jury  that  the  killing  was  not  in  self-defense,  or  justifia- 
ble, before  they  can  convict. 

If  there  be,  in  the  opinion  of  the  jury,  a  substantial  conflict 
of  the  evidence  or  circumstances  as  to  whether  the  killing  was 
done  in  self-defense,  and  the  circumstances  or  other  evidence 
preponderates  in  favor  of  self-defense,  and,  I  should  add,  if  it 
was  equally  balanced  as  to  the  killing  being  done  in  self-de- 
fense, the  jury  ought  not  to  convict  of  either  murder  or  man- 
slaughter." This  court,  however,  in  a  later  case  {State  v.  Jonea^ 
20  W.  Va.  764),  held  that,  "upon  a  trial  for  shooting  with 
intent  to  kill,  the  use  of  a  deadly  weapon  being  proved,  and 
the  prisoner  relies  upon  self-defense  to  excuse  him  for  the  use 


m 


ir 


•M^ 


jyii&ihvi-  \ 


476 


AMERICAN  CRIMINAL  REPORTS. 


,;;*'^;t;i 


4Hii 


of  the  weapon,  the  burden  of  showing  such  excuse  is  on  the 
prisoner;  and,  to  avail  him,  he  must  prove  such  defense  by  a 
preponderance  of  evidence."  It  is  true  that  ihe  courts  in  this 
state,  and  the  old  state,  have  guarded  with  jealous  care  the 
province  of  the  jury  in  criminal  trials,  and  have  declared  more 
than  once  their  aversion  to  interference  with  verdicts,  and 
have  announced  that,  although  they  might  have  rendered  a 
different  verdict  if  they  had  been  upon  the  jury,  yet  they 
ought  not  to  interfere.  Still,  we  find,  in  the  case  of  Hill  v. 
Commonwealth^  2  Grat.  595,  it  was  held  that  "  this  court  will 
only  set  aside  a  verdict  because  it  is  contrary  to  the  evidence 
in  a  case  where  the  jury  have  plainly  decided  against  the  evi- 
dence,  or  without  evidence; "  and  in  the  case  of  Orayaon  v. 
Commonwealth,  6  Grat.  712,  the  law  was  thus  stated :  "  A 
new  trial  will  be  granted  when  the  verdict  is  against  law,  or 
where  it  is  contrary  to  the  evidence,  or  where  the  verdict  is 
without  evidence; "  and  in  Foster's  case,  21  W.  Va.  767,  it  is 
held  that  "  where  the  court  which  tried  the  cause  certified  all 
the  facts  proved  on  the  trial,  and  from  the  facts  so  certified  it 
clearly  appears  that  they  were  wholly  insuflicient  to  sustain 
the  verdict,  this  court  will  set  the  verdict  aside,  and,  in  a  ])roper 
case,  awari  a  new  trial."  The  facts  and  circumstances 
developed  by  the  testimony  in  this  case  are  such  as,  in  my 
opinion,  made  out  a  case  of  self-defense.  The  fierceness  of  the 
assault  made  upon  the  prisoner  with  the  musket  immediately 
after  he  had  received  the  stunning  blow  from  the  fist  of  Baurle, 
was  such  as  to  admit  of  no  retreat  with  safety,  and  nothing 
was  left  him,  to  save  his  own  life  or  prevent  great  bodily  harm, 
but  to  use  his  weapon;  and  I  think  the  jury  should  have  so 
found,  and  the  court,  on  motion,  should  have  set  the  verdict 
aside. 

The  next  assignment  of  error  is  as  to  the  action  of  the  court 
in  excluding  the  testimony  of  Conrad  Potter  as  to  threats 
made  by  Baurle  against  the  prisoner.  These  threats,  whether 
communicated  to  the  prisoner  or  not,  were  admissible  to  show 
the  prejudice  and  state  of  mental  feeling  on  the  part  of  the 
witness  towards  the  prisoner,  and  should  not  have  been 
excluded;  and  the  same  may  be  said  in  reference  to  the  evi- 
dence offered  in  regard  to  the  feeling  of  the  witness  Lutman, 
which  was  excluded  by  the  court. 

The  fourth  assignment  of  error  is  as  to  the  exclusion  of  the 


STATE  V.  ZEIOLER. 


477 


testimony  of  John  Johnson  as  to  threats  made  by  the  deceased 
against  the  prisoner,  that  he  would  kill  him  if  he  came  out 
to  him  on  that  road.  It  is  true  that  the  witness  did  not  men- 
tion Zeigler's  name  in  thrit .  onversation,  but  he  was  talking 
about  this  road,  and  it  was  well  understood  what  he  intended. 
This  throat  does  not  appear  to  have  been  communicated  to 
Zeigler;  but  threats  of  Sautter  had  been  shown,  and  it  should 
have  been  allowed  to  go  to  the  jury,  in  connection  with  the' 
subsequent  acts  of  the  deceased,  to  show  that  his  going  to 
Zeigler's  with  his  loaded  gun  was  in  pursuance  of  a  previously 
formed  design. 

The  sixth  assignment  of  error  is  as  to  the  action  of  the 
court  in  excluding  the  testimony  of  George  Shriver,  who, 
after  testifying  as  to  his  being  road  surveyor,  and  about  some 
conversation  with  the  prisoner  as  to  whether  the  road  in  con- 
troversy was  a  public  road,  was  asked,  on  cross-examination, 
if  the  deceased  cut  down  the  bars  of  Zeigler  on  said  road; 
and  the  court  ruled  that,  if  the  defense  wished  to  ask  any 
questions  about  other  conversations,  they  would  have  to  make 
him  their  witness.  And,  while  I  think  the  question  would 
have  been  projier,  if  asked  in  chief,  I  think  it  was  properly 
excluded  on  cross-examination. 

The  sixth  and  seventh  assignments  of  error,  I  think,  were 
well  taken.  The  first  relates  to  the  contradiction  of  the  wit- 
ness "VV.  E.  Butts  in  a  material  matter,  where  the  foundation 
had  been  properly  laid;  and  the  second  rests  upon  the  same 
ground. 

The  eighth  assignment  of  error  relates  to  the  action  of  the 
court  upon  the  instructions  asked  for — in  refusing  all  of  the 
instructions  asked  for  by  the  prisoner,  and  giving  all  save  one 
asked  for  by  the  state.  The  first  instruction  asked  for  by  the 
prisoner  was  properly  rejected,  as  it  fails  to  state  the  law  "as 
laid  down  in  the  case  of  State  v.  Jones,  20  Grat.  764.  The 
second  instruction  prayed  by  the  defendant  was  properlyi 
refused,  as  I  do  not  think  it  states  the  law  correctly.  Whart., 
Horn.,  §  414,  states  the  law  upon  that  point  thus :  "A  bare 
trespass  against  the  property  of  another,  not  his  dwelling 
house,  is  not  sufficient  provocation  to  warrant  the  owner  in 
using  a  deadly  weapon  in  its  defense;  and  if  he  do,  and  with 
it  kill  the  trespasser,  it  will  be  murder,  and  this  though  the 
killing  were  actually  necessary  to  prevent  the  trespass." 


H 


i>M 


W^^:y- 


''■     i, 


^ 


^^^ 

?'^i 


m 


WWm 


Ij" 


478 


AMERICAN  CRIMINAL  REPORTS. 


The  Circuit  Court  committed  no  error  in  rojectinf^  instnic- 
tions  Nos.  3  and  4,  i>rayed  for  by  the  prisoner,  for  the  reuson  ihat 
they  are  not  suniciontly  qualified  by  statin;^,  as  was  stated  In 
Cain's  case,  in  the  instruction  given  by  tlje  court  upon  tlijs 
question,  in  inHtructifm  No.  1  for  the  defendant,  "  Wlien  ono, 
without  fault  himself,  is  attacked,"  etc.  Instructions  3  and  i 
should  have  contained  this  qualification,  and  instructions  Kos, 
*1  and  2,  given  for  the  defense  by  the  court,  not  only  contained 
this  qualification,  but  enibo<lied  all  that  was  asked  for  by  the 
prisoner  in  said  instructions  Nos.  3  and  4.  It  is  true,  this 
court  held  in  State  v.  Emnn,  33  W.  Va.  418,  that  "a  party  has 
a  right  to  have  his  instructions  given  in  his  own  language, 
provided  there  are  facts  in  evidence  to  support  it;  that  it  con- 
tains a  correct  statement  of  the  law,  and  is  not  vague,  irrele- 
vant, obscure,  ambiguous,  or  calculated  to  mislead."  But, 
unless  they  state  the  law  correctly,  they  should  be  rejected. 
For  the  foregoing  reasons  the  judgment  complained  of  must 
be  reversed,  the  verdict  set  aside,  a  new  trial  awarded,  and  the 
cause  remanded. 

Brannon,  J.  I  doubt  whether,  under  the  rule  of  practice  in 
this  court,  we  should  express  any  opinion  upon  the  evidence, 
as  the  case  must  be  retried  for  other  reasons  than  that  arising 
under  the  motion  for  a  new  trial  under  the  evidence. 


■--M'S 


^^m 


Note. — Muttinl  cotnhnt  does  not  neceamrily  deprive  party  of  right  of  self- 
defense. — If  two  persons  mutually  agree  to  go  out  and  flght  "  a  fair  lij^ht" 
without  weapons,  and  if,  on  reaching  the  place  of  coMil>ut,  they  both  aban- 
don their  first  intention,  and  mutually  agree  to  fight,  and  do  fight,  with 
deadly  weapons,  and  one  slays  the  other,  he  is  guilty  of  manslaughter,  at 
least.  But  if,  on  reaching  the  place  of  combat,  one  only  of  the  parties 
abandons  the  original  intL>ntion,  and  manifests  a  purpose  to  fight  with  a 
deadly  weapon,  and,  in  purauance  of  that  purpose,  advances  upon  and 
attacks  the  other  with  such  a  weaix)n,  and  the  latter,  not  intending  to  enter 
into  the  other's  purpose  to  have  a  mortal  combat  with  deadly  weapons,  but 
really  and  in  good  faith  endeavoring  to  decline  engaging  in  such  a  combat, 
simply  retreats,  or  stands  upon  his  defense,  and,  in  order  to  save  his  own 
life  or  to  prevent  the  perpetration  of  a  felony  upon  him,  of  necessity  slays 
his  adversary,  he  is  guilty  of  no  oflfense,  but  is  justifiable  in  law.  Barton 
V.  State,  96  Oa.  435, 

Instruction — When  life  of  assailant  may  be  taken. — An  instruction  that 
life  can  be  taken  only  in  resisting  "  an  assault  threatening,  imperiling  life," 
is  erroneous,  as  there  need  not  be  an  actual  peril  existing;  it  is  "^nough  that 
the  circumstances  are  such  as  to  create  a  reasonable  belief,  and  that  the 
party  does  believe,  he  is  in  imminent  peril  of  life  or  limb.  Thomas  v.  State, 
80  Fla.  109. 


STATE  V.  ZEIOLER. 


479 


Self-defense.— Tioronwil  woh  killed  byn  Btono alleged  tolinveheen  thrown 
by  di'fetulaiit.  Dcfendnnt  testiHud  that  decenHed's  nttaok  u|xm  him  was 
unprovoked  and  violent,  that  he  advanced  upon  defendant  an  the  latter  was 
retreating,  and  that  defendant  thought  deceaned  wan  going  to  hif.  him;  hut 
healflo  claimed  that  a  third  penton  threw  tiie  Ht<me.  IJeld,  that  there  was 
no  error  in  instructing  aa  to  Hoif-defenHe,  though  defendant  objectod.  Jii'ctl 
V.  State,  141  Ind.  110. 

An  instruction  that  defendant  is  entitled  to  an  acquittal  if  he  was 
amaulted  by  deceased  in  such  a  manner  us  to  cause  him  to  believe,  and  he 
did  believe,  that  he  was  in  imminent  danger  of  his  life  or  sutlering  great 
bodily  harm,  and  he  killed  deceased  while  so  believing,  is  substantially  cor> 
rect.    Deilkea  r.  State,  141  Ind.  28. 

An  instruction  tliat,  if  an  act  bo  perpetrated  with  a  deadly  weapon  so 
used  as  to  bo  likely  to  produce  death,  tlie  pur|)ose  to  kill  may  be  inferred 
tlierefrom,  is  not  erroneous.     Id. 

An  instruction  on  the  law  of  self-defense,  which  is  misleading  in  not  being 
Biifflciently  definite,  and  invades  the  province  of  the  jury,  is  properly 
refused.    Id. 

A  rpipstion  to  defendant  as  to  whether  he  believed  he  was  in  danger  of 
great  bodily  harm,  from  what  he  knew  of  the  character  of  deceased,  and 
from  the  nature  of  the  assault  upon  him  by  deceased,  was  properly 
excluded.    Id. 

A  conviction  of  manslaughter  will  not  be  disturbed  as  not  being  sustained 
by  suflficient  evidence  wliere  the  evidence  is  conflicting,  and  there  is  testi- 
mony sustaining  every  material  allegation  in  the  indictment.    Id. 

Self-defense. — In  the  absence  of  exceptional  circumstances,  a  person  is 
not  justifled  in  repelling  a  blow  with  the  iist  by  stabbing  his  assailant. 
Smith  V.  State,  143  Ind.  685. 

Where  defendant,  in  a  fight  with  deceased,  drew  a  pistol  and  shot  him, 
the  court  properly  refused  to  charge  that,  to  deprive  defendant  of  the  right 
of  self-defense  he  must  have  procured  the  pistol  with  intent  to  bring  on 
the  difficulty,  and  use  it  therein  in  overcoming  or  slaying  deceased,  if 
necessary,  it  being  enough  that  defendant  intended  to  use  the  weapon  in 
inflicting  great  Iwdily  harm  upon  deceased  or  in  committing  a  felony. 
Hard  V.  State,  72  Miss.  413. 

Defendant  shot  deceased  in  a  fight.  The  court  charged  that  defendant 
had  no  right  of  self-defense  if  he  procured  the  pistol  with  a  view  of  bring- 
ing on  the  difficulty,  or  if  he  got  it  "  to  be  used  in  the  fight,"  or  in  any  way 
in  overcoming  deceased  in  committing  any  felony  or  in  injuring  him,  how- 
ever slightly.  Held  that,  though  the  charges  were  incorrect,  there  was  no 
reversible  error.    Id. 

Defendant  went  to  deceased's  house  at  night  to  beat  him,  and  in  the  fight 
shot  him.  but  there  was  evidence  that  defendant  was  retreating  when  ho 
shot.  The  court  charged  that  if  defendant  armed  himself  w^ith  a  deadly 
weapon,  and  went  to  deceased's  house  at  night  to  do  "  some"  unlawful  act, 
and  provoked  a  difficulty  in  which  he  killed  deceased,  it  was  murder, 
though  at  the  time  of  the  shooting  deceased  was  striking  defendant  with  a 
hoe  or  other  deadly  weapon.  Held,  that  the  charge  was  erroneous,  as  im- 
posing no  limit  upon  the  character  of  the  unlawful  act,  and  as  omitting 
reference  to  defendant's  having  abandoned  the  contest.    Id. 

A  charge  that,  in  orderto  justify  a  homicide  on  the  grouud  of  self-defense, 


',*!., 


w%. 


T^^Hpf 


4S0 


AMERICAN  CRIMINAL  REPORTS. 


a  person  endangered  or  assailed  must  employ  all  reasonable  means  within 
his  power,  consistent  with  his  safety,  to  avoid  the  danger,  and  avert  the 
n(«e8sity  of  taking  life;  he  must  even  retreat,  if  retreat  be  safe  and  prac- 
ticable, ia  erroneous.    Page  v.  State,  141  Ind.  286. 


(Crown  Case  Reserved.) 
Reg.  v.  Mcnsiow. 

(18  Cox's  Criminal  Law  Cases,  112.) 

Defamatory   hiHEh— Practice— Indictment — Necessary  averment— Infer- 
ence of  law— Allegation  of  malice. 

1.  It  is  not  necessary  to  allege  in  an  indictment  facts  which  the  law  will 

necessarily  infer  from  the  proof  ot  other  facts  which  are  alleged. 

2.  An  indictment  for  defamatory  libel  omitted  to  allege  that  the  libel  was 

published  maliciously.  Held,  that  the  Indictment  was  nevertheless 
good,  inasmuch  as  upon  proof  of  the  publication  of  the  libel  the  legal 
inference,  until  rebutted  by  the  defendant,  was  that  it  was  published 
maliciously,  and  the  allegation  that  the  publication  was  malicious  wiis 
not  therefore  a  necessary  averment. 

Before  Lord  Russell,  C.  J.,  Pollock,  B.,  Wills,  Charles 
and  Lawrence,  JJ. 

Case  stated  by  Cave,  J.,  as  follows : 

1.  George  Miinslow  was  tried  before  me  at  the  last  assizes 
at  Warwick  on  an  indictment  for  libel  under  Sect.  5  of  6  and 
7  Vict.,  c.  96. 

2.  The  indictment  contained  three  counts,  each  setting  out 
a  separate  libel.  The  language  of  each  count,  so  far  as  it 
affects  the  question  of  law  raised  before  me,  was  identical,  and 
for  the  purpose  of  the  present  case  it  is  only  necessary  to  set 
out  the  material  words  of  the  first  count,  which  were  as  fol- 
lows :  "  The  jurors  for  our  Lady  the  Queen  upon  their  oath 
present  that  George  Munslow  unlawfully  did  write  und  pub- 
lish a  certain  defamatory  libel  of  and  concerning  Henry  True- 
love,  according  to  the  tenor  and  effect  following,  that  is  to 
say:"  *  *  *  (Here  follow  the  specific  words  of  the  par- 
ticular libel  complained  of.) 

3.  The  prisoner  pleaded  not  guilty,  whereupon  counsel  on 
his  behalf  applied  to  me  to  quash  the  indictment  on  the  ground 


,tti! « 


REG.  V.  MUNSLOW. 


481 


that  it  did  not  contain  any  averment  that  the  prisoner  pub- 
lislied  the  libels  or  any  of  them  maliciously,  and  did  not  there- 
fore sufficiently  disclose  any  offence  under  the  aforesaid 
section. 

4.  I  refused  this  application  and  allowed  the  case  to  pro- 
ceed, and  the  prisoner  having  been  convicted  on  all  the  counts, 
his  counsel  raised  the  same  question  by  way  of  motion  in 
arrest  of  judgment.  I  thereupon  postponed  sentence,  and  took 
bail  for  the  prisoner  to  come  up  for  judgment  if  called  upon 
at  the  next  assizes  and  consented  to  state  a  case  for  the  con- 
sideration of  this  court. 

The  question  for  the  opinion  of  the  court  is  whether  judg- 
ment ought  to  be  arrested  on  the  ground  taken  by  the  prison- 
er's counsel.    6  and  7  Vict.  c.  90,  s.  5  enacts  that : 

If  any  person  shall  maliciously  publish  any  defamatory 
libel,  every  such  person,  being  convicted  thereof,  shall  be 
liable  to  fine  or  imprisonment,  or  both,  as  the  court  may  award, 
such  imprisonment  not  to  exceed  the  term  of  one  year. 

Stanger,  on  behalf  of  the  prisoner,  submitted  that  it  was 
essential  to  support  the  conviction  that  the  publication  of  the 
lil)el  should  have  been  found  to  be  malicious,  and  that  it  was 
therefore  necessary  to  aver  in  the  indictment  that  the  libel 
was  publisL  .1  maliciously.  Although  the  law  will  infer  malice 
in  many  cases,  it  may  be  that  the  circumstances  proved  b}'  the 
prosecution  may  show,  or  that  the  prisoner  may  prove,  the 
publication  to  have  been  privileged,  in  which  case  evidence  of 
express  malice  would  be  required,  and  it  followed  must  be 
alleged  in  the  indictment.  In  Re<j.  v.  [farveif  (1  C.  C.  K.  2S4), 
it  was  held  that,  where  it  was  an  offence  to  do  a  thing  "  with- 
out lawful  authority  or  excuse,"  the  proof  of  such  authority 
or  excuse  lying  on  the  person  accused,  it  was  necessar\'  to 
negative  lawful  authority  or  excuse  in  the  indictment  never- 
theless. Further,  it  is  a  question  of  fact  whether  or  not  a 
publication  was  malicious,  and  it  was  clear  that  the  allegation 
that  the  libel  was  published  '•  unlawfully  "  would  not  supply 
the  allegation  that  it  was  published  "  maliciously; "  and  if  the 
latter  allegation  was  essential  to  the  validity  of  the  indict- 
ment its  omission  could  not  be  cured  by  the  verdict.  In  Em,' 
mons  V.  Pottle  and  another  (16  Q.  13.  Div.  354),  Lord  Esher,  M. 
R.,  seems  to  have  considered  that  it  was  for  the  jury  to  find 
whether  the  defendant  then  know  that  tho  paper  contained  a 
81 


4S2 


AMERICAN  CRIMINAL  REPORTS. 


t 

Ir 


libel,  which  was  in  effect  leaving  it  to  the  jury  to  find  malice. 
Even  assuming  that  the  averment  was  necessary,  its  omission 
was  not  cured  by  the  verdict  of  the  jury,  inasmuch  as  the  rule 
as  to  the  curing  of  imperfectly-stated  averments  by  the  ver- 
dict is  not  applicable  to  the  case  of  total  omission  of  an  essen- 
tial averment.  See  Brett,  J.  A.,  in  Reg.  v.  Anpinall  (30  L.  T. 
Eep.  297;  2  Q.  B.  Div.  48;  13  Cox  C.  C.  563;  46  L.  J.  145,  M. 
C.)  In  Heg.  v.  Eyan  (2  Moo.  C.  C.  15),  it  was  held  that  the 
omission  of  the  word  "  unlawfully "  rendered  an  indictment 
under  9  Gee.  4,  c.  31,  s.  12,  bad,  although  the  word  "mali- 
ciously"  was  used;  and  Rex  v.  Turner  (I  Moo.  C.  C.  239),  was 
a  similar  decision.  The  present  indictment  was  founded  upon 
the  statute,  and  in  Rex  v.  Cox  (1  Leach  C.  C  71),  the  court 
held  that,  where  the  word  "  wilful,"  was  used  in  the  statute 
creating  the  offence  it  was  necessary  to  aver  in  tlie  indictment 
that  the  offence  was  committed  wilfully;  so  also  in  Rex  v. 
Davis  (lb.  493),  an  indictment  under  the  Black  Act  was  held 
bad  for  omitting  to  charge  the  shooting  to  have  been  done 
*'  wilfully  and  maliciously "  as  Avell  as  feloniously.  If  the 
description  in  the  statute  merely  described  the  common  law 
offence  of  libel,  it  would  not  create  any  new  offence;  but  if  it 
described  something  different,  as  it  was  submitted  it  did,*  then 
the  statute  created  a  new  oifence,  and  the  offence  being 
alleged  contra /or  mam  statute,  it  was  necessary  that  it  should 
be  charged  in  the  words  of  the  statute. 

Hugo  Young,  in  support  of  the  conviction,  submitted  that 
even  if  the  indictment,  being  founded  upon  the  statute,  should 
have  alleged  that  the  libel  was  published  maliciously,  yet  in 
Reg.  V.  Boale  (21  Q.  B.  Div.  2S4),  it  was  held,  that  on  an 
indictment  for  publishing  a  defamatory  libel,  "  knowing  the 
same  to  be  false,"  the  defendant  may  be  convicted  of  the  common 
law  offence  of  publishing  a  defamatory  libc).  The  averment 
was  one  which  was  ne'^essarily  involved  in  the  verdict,  and 
was  therefore  cured,  according  to  the  rule  in  TIeyman  v.  The 
Queen  (23  L.  T.  Rep.  8  Q.  B.  102;  12  Cox  C.  C.  383).  It  was 
further  submitted  that  the  allegation  of  malice  was  unneces- 
sary to  the  validity  of  the  indictment,  inasmuch  as  the  law 
inferred  from  the  mere  publication  of  a  defamatory  libel  that 
it  was  published  maliciously;  and  it  was  therefore  unnecessary 
to  aver  that  which  the  law  would  necessarily  infer  from  the 
averments  that  were  made.    (  Wcrcer  v.  Sjjarka,  referred  to  in 


m.--- 


f  in 


REG.  V.  MUNSLOW. 


488 


Viner's  Abr.,  followed  in  Bromage  v.  Proaaer^  4  £.  &  C.  247, 
at  p.  255.) 

Stanger,  in  reply. 

Lord  Kussell,  C.  J.  This  is  a  case  in  arrest  of  judgment, 
and  the  matter  comes  before  us  upon  a  case  stated  by  my 
learned  brother  Oave,  who  presided  at  the  trial  of  an  indict- 
ment charging  the  defendant  with  libel.  The  indictment 
contained  three  counts  and  the  language  of  those  counts  for 
tlie  purposes  we  have  to  consider  to-day,  may  be  taken  to  be 
identical.  They  stated  that  the  defendant  "  unlawfully  did 
write  and  publish  a  certain  defamatory  libel  of  and  concern- 
ing Harry  Truelove,  according  to  the  tenor  and  effect  follow- 
ing," and  the  indictment  then  proceeds  to  set  out  the  libel 
complained  of.  It  will  therefore  be  seen  to  have  omitted  the 
word  usually  found  in  such  an  indictment,  namely,  "  mali- 
ciously." Speaking  for  myself,  it  is  deplorable  that  the  law 
admits  of  its  being  possible  to  raise  such  an  objection  as  the 
present,  and  that  the  existing  law  does  not  admit  of  such  an 
omission  being  then  and  there  supplied  by  the  judge  at  the 
trial.  The  point  was,  however,  taken  that  the  indictment  was 
bad,  and  the  substantial  question  we  have  to  determine  is, 
was  the  indictment  bad  ?  The  case  was  intended  to  be  pre- 
sented by  the  prosecution  as  coming  within  Sect.  5  of  6  and 
7  Vict.,  c.  90,  and  undoubtedly  it  is  clear  that  the  case  was 
presented  to  the  jury  as  a  case  coming  within  that  section. 
Now,  what  is  the  effect  of  coming  within  that  section  ?  It 
provides  that,  if  any  person  shall  maliciously  publish  any 
defamatory  libel,  every  such  person,  being  convicted  thereof, 
shall  be  liable  to  fine  or  imprisonment,  or  both,  as  the  court 
may  award.  It  therefore  does  not,  so  far  as  its  language  is 
concerned,  disclose  the  creation  of  any  new  offence,  nor  does 
it  purport  to  be  a  definition  of  an  existing  offence.  It  is 
merely  an  application,  to  that  which  is  an  offence  at  common 
law,  of  the  punishment  which  is  to  take  place  upon  a  convic- 
tion for  the  common  law  offence.  Therefore  all  the  line  of 
cases  referred  to  by  the  learned  counsel  in  his  able  argument 
on  behalf  of  the  defendant,  which  relate  to  offences  created 
b}'  statute,  have  no  bearing  upon  the  present  case.  Why  was 
it  that  the  word  "  maliciously  "  was  introduced  ?    It  is  obvi- 


484 


AMERICAN  CRIMINAL  REPORTS. 


y  1(1 


-i^  I 


m- 


ously  necessary  that  it  should  have  been  introduced,  for  if  it 
had  not  it  would  have  worked  a  great  deal  of  injustice,  for 
any  one  who  publishes  defamatory  nuitter  of  another  is  guilty 
of  publishing  a  libel.  The  word  "  maliciously  "  is  introduced 
in  order  to  convey  that  although  a  num  woidd  ho  prima  fade 
liable  for  publishing  a  defamatory  libel,  yet  he  can  rebut  lliat 
by  displacing  the  presumption  that  the  publication  was  mali- 
cious.  The  judge  at  the  trial  has  to  direct  the  jury  wliotlier 
it  is  capable  of  being  treated  as  a  defamator}'  libel,  and  tliere 
his  functions  end.  The  common  law  attaches  to  the  more 
fact  of  publication  that  it  was  malicious. 

But  the  defendant  may  be  al)le  to  show  that  though  it  was 
in  fact  a  defamatory  libel,  yet  it  was  publislied  upon  a  piivi- 
leged  occasion,  or  that  it  was  true  and  ])ublished  for  the  public 
benefit.   That  class  of  cases  was  excluded  by  the  use  of  the  word 
"maliciously."     We  must  follow  it    out  clearl}'.     The  case 
goes  to  the  jury,  and  it  must  be  assumed  that  the  libel  was 
capable  of  the  innuendoes  put  upon  it,  and  that  the  jury  found 
that  it  was  in  fact  a  libel,  and  that  there  was  no  justification 
for  its  publication.     The  question  arises  in  that  state  of  things 
whether  the  conviction  is  one  which  is  to  be  quashed  merely 
because  the  word  "maliciously"  was  omitted  in  the  indict- 
ment.   The  argument  is,  in  effect,  that  this  was  an  indictment 
under  the  statute,  and  for  an  offence  under  the  statute.     P.ut 
in  my  judgment,  that  is  a  mistake.     It  was  an  indictment  for 
the  common  law  offence,  but  one  which  was  so  framed  as  to 
bring  it  within  the  section.     Then,  is  an  indictment  which 
merely  omits  the  word  "  maliciously  "  a  bad  indictment?    It 
is  common  ground  that  the  practice  in  both  civil  and  criminal 
cases  is  the  same.     Then  if,  in  civil  cases,  a  declaration  for  a 
defamatory  libel  would  be  good  on  demurrer  which  omitted 
that  word,  an  indictment  would  also  be  good.     Xo  doubt  the 
the  law  implies  malice  from   the  publication  of  defamatory 
matter.    Now,  how  stand   the  authorities?     The  first  case  is 
Jlex  V.  Harvey,  decided   in  1823  (2  B.  &  C.  250).     That  is  a 
case  in  which  the  defendants  were  indicted  for  a  libel  imputing 
to  George  IV.  mental  insanity,  and  although  the  point  did  not 
arise,  the  language  used  by  the  learned  judges,  upon  motion 
being  made  for  a  new  trial,  throws  an  important  light  on  the 
question.    The  jury,  after  being  dismissed,  wished  to  know  if 
it  was  necessary  that  there  should  be  a  malicious  intention  to 


'm 


REG.  V.  MUNSLOW. 


486 


constitute  a  libel,  and  Abbott,  C.  J.,  repliedthat,  "The  man 
who  publishes  slanderous  matter,  in  its  nature  calculated  to 
defame  and  vilify  another,  must  be  presumed  to  have  intended 
to  do  tliat  which  the  publication  is  calculated  to  bring  about, 
unless  he  can  show  the  contrary;  and  it  is  for  him  to  show  the 
contrary."  Upon  the  new  trial,  motion  coming  on,  Bayley, 
J.,  on  page  203,  says : 

"  It  is  considered  that  to  state  falsely  of  his  majesty  that 
which  is  stated  in  this  ])ublication  is  a  libel.  If  it  be  not  so, 
the  objection  will  be  upon  the  record,  and  may  be  taken 
adva«ta<ro  of  either  upon  writ  of  error  or  by  a  motion  in 
arrest  of  judgment.  But,  as  at  present  advised,  I  am  of  opin- 
ion that  falsely  making  that  assertion  was  evidence  that  the 
party  made  it  maliciously."  Then,  again  on  p.  2CA,  he  repeats 
the  same  proposition.  Ilolroyd,  J.,  is  more  direct  on  the 
necessity  for  the  allegation  of  the  malice.  He  says :  "  Now, 
if  a  thing  in  itself  mischievous  to  the  public  be  wrongfully 
done,  that  is  an  indictable  offence.  It  is  not  necessary  to  aver 
in  such  an  indictment  any  direct  malice,  because  the  doing  of 
such  an  act  without  an}-^  excuse  is  indictable."  Again,  on  p. 
2G7,  he  says :  "  If  the  matter  publislied  was  in  itself  mis- 
chievous to  the  ])ublic,  the  ver}'  act  of  publishing  is  pritna 
facie  evidence  to  show  that  it  was  done  malo  animoi  for  when 
a  publication  having  such  an  injurious  tendency  is  proved,  it 
is  intended  to  have  been  done  with  a  malicious  intention; 
because  the  principle  of  the  law  is,  that  a  party  must  always 
be  taken  to  intend  those  things  and  those  effects  which  natur- 
ally grow  out  of  the  act.  If,  therefore,  the  effect  naturally 
flowing  from  the  act  of  publishing  the  libellous  matter  in  this 
case  was  mischievous  to  the  public  it  follows  that  the  judge 
was  bound  to  tell  the  jury  that  malice  was,  by  law,  to  be 
inferred,  and  so  forth.  I  wouhl  only  observe  that  the  wor«'s 
"  prove  at  the  trial  "  must  be  used  in  the  sense  that  the  learned 
counsel  for  the  defendant  used  them,  that  it  is  necessary  to 
prove  it  in  the  sense  that  the  facts  from  which  the  law  will 
infer  malice  must  bo  [u-oved.  That  case  was  followed  by  the 
case  of  Bromaye  and  another  v.  Prosser  (1  B.  &  C.  2*7), 
decided  in  1825,  an  action  for  slander;  but  on  the  point  v»o 
are  considering  no  difference  exists  between  that  and  the 
present  case.     Bayley,  J.,  in  that  case  said : 

"  If  in  an  ordinary  case  of  slander  (not  a  case  of  privileged 


rf^ 


m'-im 


486 


AMERICAN  CRIMINAL  REPORTS. 


communication)  want  of  malice  is  a  question  of  fact  for  the 
consideration  of  the  jury,  the  direction  was  right;  but  if  in 
such  case  the  law  implies  such  malice  as  is  necessary  to  main- 
tain the  action,  it  is  the  duty  of  the  judge  to  withdraw  the 
question  of  malice  from  the  consideration  of  the  jury;  and  it 
appears  to  us  that  the  direction  in  this  case  was  wrong."  A 
little  later  on  he  says :  "  Malice  in  common  acceptation  means 
ill-will  against  a  person,  but  in  its  legal  sense  it  means  a  wrong- 
ful act,  done  intentionally,  without  just  cause  or  excuse." 
This  is  so  laid  down  in  Mercer  v.  Sparks,  which  is  reported  in 
Noye's  Rep.,  p.  35,  and  also  in  Owen's  Rep.,  at  p.  51.  Those 
are  the  authorities,  and  the  last  case  that  it  is  necessary  to 
refer  to  is  Ileyman  v.  Tlie  Queen  (28  L.  T.  102;  L.  Rep.  8  Q.  B. 
102;  12  Cox.  C.  C.  383),  where  it  is  clearly  laid  down  that  there 
is  no  difference  in  the  principle  applicable  in  civil  and  in  crim- 
inal pleadings  that  defective  allegations  contained  therein  are 
corrected  by  the  verdict.  The  general  principles  in  civil  and 
in  criminal  proceedings  are  substantially  the  same.  I  come, 
therefore,  to  the  conclusion  that  this  indictment  is  good,  and 
that  it  would  be  monstrous  if  it  could  not  be  so  held.  To  go 
further,  the  indictment  begins  with  a  statement  that  the  libel 
was  published  unlawfully,  and,  considering  the  question  as  we 
are  now  doing  after  the  verdict  of  the  jury,  even  as  an  imper- 
fect averment,  I  think  that  such  imperfection  would  be  cured 
by  the  verdict.  I  do  not  base  my  judgment  upon  that  ground, 
however,  but  on  the  ground  that  the  indictment  is  good,  not- 
w^ithstanding  the  omission  of  th«  v/ord  "  malicious]}'; "  that  it 
is  not  an  indictment  under  the  statute,  but  that  the  statute  is 
merely  an  enjoining  of  what  punishment  is  to  follow  upon  a 
conviction  for  the  common  law  offence.  On  these  grounds  I 
think  that  the  conviction  must  stand. 

Pollock,  B.  I  concur  in  thinking  that  this  conviction  is 
good  upon  the  ground  that  the  indictment  is  good  in  law.  ^ly 
Lord  has  pointed  out  very  clearly  that  this  is  not  an  indict- 
ment founded  upon  any  particular  section  of  an  act  of  parlia- 
ment, and  we  have  only  to  bear  in  mind  that  the  rules  wiiich 
are  applicable  to  cases  of  libel  are  the  same,  both  in  civil  and 
criminal  proceedings. 

It  may  be  generally  observed  that,  where  an  action  will  lie 
for  that  which  is  a  libel,  an  indictment  may  charge  the  docu- 
ment in  question  as  a  libel,  and  where  that  is  so  the  person 


REG.  V.  MUNSLOW. 


487 


,*'ho  publishes  that  libel  brings  himself  within  the  criminal 
law  without  its  being  necessary  to  show  any  malice.  That  has 
been  followed  out  by  all  the  authorities.  As  early  as  the  time 
of  Elizabeth  wo  find  a  case  in  which  it  was  held  that  where 
words  are  scandalous  they  are,  eo  ipso,  malicious,  and  it  is 
therefore  unnecessary  in  an  action  to  allege  that  they  were 
spoken  maliciously  (Vin.  Abr.  533).  In  Ilalre  v.  Wilson  (9 
B.  &  C.  645),  Avhere  the  learned  judge  who  tried  the  case 
directed  the  jury  to  find  for  the  plaintiff  if  they  thought  the 
defendant  intended  to  injure  him  by  publishing  the  libel  in 
question,  otherwise  for  the  defendant;  and  Lord  Tenterden,  C. 
J.,  commenting  on  that  when  the  case  came  before  the  court 
of  king's  bench,  said  this :  "The  judge  ought  not  to  have 
left  it  as  a  question  to  the  jury,  whether  the  defendant  in- 
tended to  injure  the  plaintiff,  for  every  man  must  be  presumed 
to  intend  the  natural  and  ordinary  consequences  of  his  own 
act.  If  the  judge  thought  the  tendency  of  the  publication 
injurious  to  the  plaintiff,  he  ought  to  have  told  the  jury  it  was 
actionable,  and  that  the  plaintiff  was  entitled  to  a  verdict. 
That  was  the  view  ado})ted  and  enforced  in  Brovnxge  v.  Prosser 
(4  B.  &  C.  247),  and  some  of  tlie  other  cases.  Can  it  then  be 
said  that  an  indictment  must  aver  that  which  is  an  inference 
of  law  ?  It  is  unnecessary  to  cite  any  other  cases  to  show 
that  this  is  not  so.  For  myself,  I  think  that  where  sufficient 
facts  are  proved,  it  is  for  the  judge  to  make  a  statement  that 
the  jury  are  to  infer  that  there  was  malice,  unless  they  are 
satisfied  from  the  facts  that  the  publication  was  not  malicious. 
I  think  that  this  indictment  is  good,  and  that  the  conviction 
must  therefore  be  confirmed. 

Wills,  J.  I  am  of  the  same  opinion,  and  am  not  sorry  that 
the  question  has  been  seriously  discussed.  It  is  of  consider- 
able importance  in  criminal  matters  that  the  offence  should 
be  stated  in  clear  and  legal  language,  so  that  looseness  of 
thought,  which  creeps  into  the  consideration  of  civil  cases, 
should  be  provided  against  as  much  as  possible. 

The  expression  libel  and  the  expression  publication  exclude, 
in  my  opinion,  what  the  books  sometimes  call  accidental  pub- 
lication, because,  as  I  understand  the  case  of  Emmens  o.  Pottle 
{ubi  sup.),  that  which  is  called  an  accidental  publication  is 
no  publication  at  all.  In  Lord  Abingdon's  case  (1  Esp.  225), 
Lord  Kenyon  treats  it  as  a  case  of  inadvertent  publication. 


til 


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48S 


AMERICAN  CRIMINAL  REPORTS. 


But  Lord  Esher's  view  in  Emtnem  v.  Pottle  is,  to  my  mind, 
more  technically  correct;  but,  which  ever  you  follow,  tlie 
notion  of  its  being  necessary  to  prove  that  the  ]>ublication  was 
malicious,  is  excluded.  It  seems  to  mo  that  every  case  is 
excluded  in  which  the  law  would  not  necessarily  attach  tlie 
epithet  of  malice  to  the  publication  of  the  document.  If  tiuit 
is  so,  the  allcfjation  of  malice  can  not  be  less  elf ootively  made 
by  not  being  expressly  alleged.  If  the  inference  is  inevitable, 
it  is  suliicieut,  and  I  therefore  think  that  this  conviction  is 
good. 

Chari.es,  J.  I  am  also  of  opinion  that  this  indictment  was 
good,  and  I  have  nothing  to  add  to  the  reasons  given  by  my 
Lord  and  my  learned  brothers.  For  myself,  I  may  add  that 
I  am  of  opinion  that,  even  if  the  indictment  was  bad,  its  in- 
sufficiency has  been  entirely  cured  by  the  verdict. 

Lawrence,  J.     I  entirely  agree. 
Conviction  affirmed. 

Note. — What  eonstitntes  libel  per  se. — A  case  of  much  importancp  and 
considerable  novelty  has  been  recently  decided  by  tlie  Supreme  Court  of 
Minnesota  (Peterson  v.  Western  Union  Tel.  Co.,  1  Chicago  Law  Journal 
Weekly,  375).  The  suit  was  instituted  by  tlie  i)laintifT  against  the  del'ciul- 
ant  to  recover  damages  for  defamation  of  character,  under  tlie  following 
circumstances: 

It  would  seem  that  tho  plaintiff  was  an  aspirant  or  candidate  for  political 
honors,  and  the  defendant,  on  January  19,  18i)o,  received  at  itsoilice  in  New 
Ulm,  from  Albert  Blancharil,  a  message  for  transmission  over  its  telegraph 
line  to  St.  Paul,  which  reads  thus:  "  New  Ulm,  jMinn.,  1-19,  1893.  To  S. 
D.  Peterson,  Caro  Windsor,  St.  Paul,  Minn.:  Slippery  Sam,  your  name  is 
pants.  [Signed]  Many  Re|)ublicans,"  The  New  Ulm  operator  sent  the 
message  over  the  wires  to  St.  Paul,  where  it  was  taken  from  the  wire  by 
the  operator,  and  delivered  to  the  plaintiff  in  a  sealed  envelope  bearing  his 
address  as  stated  in  the  message. 

The  plaintiff  recovered  a  verdict  for  $5,200,  upon  which  the  trial  court 
entered  a  judgment,  which  was  reversed  by  the  supreme  court  because;  it 
was  excessive.  The  court,  however,  held  that  the  message  was  libelous 
per  se,  which  necessarily  implies  that  the  pei-son  publishing  the  same  would 
be  amenable  to  punishment  under  the  statute.  "  The  sting  is  in  the  word 
'  slippery,' "  says  the  court.  This  word,  when  used  as  descriptive  of  a 
person,  has  a  well  understood  meaning.  It  means,  when  so  used,  that  the 
person  to  whom  it  is  applied  can  not  be  depended  on  or  trusted;  that  he  ia 
dishonest,  and  apt  to  play  one  false.  Cent.  Diet.  If  such  is  the  meaning 
of  the  word  as  used  in  this  message — and  of  this  the  jury  were  the  judges- 
it  was  cleai'ly  libelous,  because,  if  a  man  ia  dishonest,  and  apt  to  play  oi.i} 


JANZEN  V.  THE  PEOPLE. 


4S9 


false,  he  merits  the  scorn  and  contempt  of  all  honorable  men.  To  falsely 
publish  of  a  man  tii:it  he  is  slippery,  tends  to  render  him  odious  and  con- 
temptible.   Such  a  publication  is  a  libel.     Wilkes  v.  Shwlds,  03  Minn.  420. 

To  charge  that  a  man  is  an  ex-convict,  is  libelous  jfjer  se.  Morrisey  v. 
Peo.  Tel.  Co.,  82  Atl.  19. 

Res})omibility  of  newnpnper  publiHher.— It  is  no  defense  to  indictment 
for  libel  against  the  publisher  of  a  newspaper  to  show  that  the  article  was 
publislied  without  his  consent  and  knowledge,  unless  it  further  appear  that 
the  publication  did  not  occur  through  any  negligence  or  want  of  ordinary 
care  on  his  part.  Slate  v.  Mason,  38  Pac.  (Ore.)  138.  The  publisher  gives 
his  agents  the  power  to  publish  articles,  and  if  through  his  want  of  care, 
libelous  articles  are  published,  he  should  be  held  criminally  liable.    Id. 

Also  Com.  V,  Morgan,  107  Mass.  109. 


Janzen  v.  Tue  People. 


(150  111.  440.) 

Rape:    Evidence  in   prosecution  for  rape  -  Controlling  application  of 

improper  testimony. 

The  admission,  on  the  trial  of  a  father  for  rape  upon  his  daughter,  of  evi- 
dence that  he  also  committed  a  rape  upon  another  daughter,  is  revers- 
ible error,  although  the  court  attempts  to  confine  its  application  to  the 
question  why  the  latter  daughter  left  home  and  to  the  contradictio.i  j 
of  defendant's  testimony. 

Writ  of  Error  to  the  Circuit  Court  of  Stephenson  County  ;j 
the  lion.  James  Shaw,  Ju(l»^e  presiding. 

William  M.  Snyrler,  William  JV.  Cronkrite,  uad  Horatio  C. 
Burchard,  for  plaintiff  in  error. 

Mmirice  T.  Moloney.  Attorney  General  (71  J.  Scojield,  M. 
L,  Newell.,  Samuel  Jiicholson  and  George  Baeon,  of  counsel,) 
and  Oscar  E.  Heard.,  State's  Attorney,  for  the  People. 

Mb.  Chief  Justice  Ckaio  delivered  the  opinion  of  the 
Court: 

This  was  an  indictment  in  the  Circuit  Court  of  Stephenson 
County,  against  Ebbert  Janzen,  plaintiff  in  error,  for  rape, 
alleged  to  have  been  committed  on  or  about  the  first  day  of 
May,  1894,  upon  the  person  of  his  daughter,  Mary  Janzen,  who 
at  the  time  the  offense  was  committed  was  under  the  age  of  i'our- 


\- 


:'^1 


490 


AMERICAN  CRIMINAL  REPORTS. 


\  '■ 


J 


toon  years.  On  a  trial  boforo  a  jury  the  defendant  was  found 
guilty  as  charf^ed  in  the  indictment,  and  his  term  of  imprison- 
ment was  fixed  at  six  years  in  the  penitentiary.  The  court 
overrule<l  a  motion  for  a  now  trial  and  entered  judgment  on 
the  verdict,  to  reverse  which  the  defendant  sued  out  this  writ 
of  error. 

It  is  first  claimed  by  counsel  for  plaintiff  in  error  that  the 
court  erred  in  the  admission  of  improper  evidence,  and  under 
this  head  it  is  said  the  prosecution  was  permitted  to  introduce 
evidence  that  another  offense  was  committed  by  the  defendant 
on  the  person  of  another  daughter  subsequently  to  the  one 
charged  in  the  indictment.  Upon  looking  into  the  record  it 
appears  that  Yetta  Janzen,  a  sister  of  the  prosecuting  witness, 
was  called  and  testified  in  behalf  of  the  People,  and  from  lier 
evidence  it  appeared  that  she  had  been  absent  from  iiome 
about  three  years,  living  with  a  family  named  Clipping,  who 
resided  some  five  miles  from  the  defendant.  U|)on  cross- 
examination  of  the  witness  the  following  occurred:  Counsel  for 
defense  stated  that  he  desired  to  show  that  the  witness  had 
become  displeased  with  her  father  because  she  did  not  have  as 
good  a  home  with  him  as  she  had  at  Clipping's. 

The  Court:  "  You  may  show  that  briefly,  but  not  go  into 
details. 

Q.  "  You  did  not  Avant  to  stay  at  home,  did  you,  Yetta?  A. 
•'  No,  sir. 

Q.  "  Did  your  father  want  you  to  stay  at  home?  A. 
"  Yes,  sir." 

After  this  evidence  was  called  out  by  the  defendant,  the 
court,  over  the  objection  of  the  defendant,  permitted  the  wit- 
ness, on  behalf  of  the  People,  to  testify  as  follows:  "  He  tried 
to  use  me  in  a  bad  way  in  bed.  First  he  was  in  anotlier  bed 
and  afterwards  he  came  into  mv  bed.  The  bovs  and  Mary 
were  out  doors.  This  was  about  five  o'clock  in  the  morning. 
After  he  got  into  bed  he  took  hold  of  my  arms  and  got  on  top 
of  me.  He  unbuttoned  my  drawers  and  put  his  private  parts 
between  my  legs.  I  hollered,  '  Ouch.'  I  hollered  more  than 
once — not  very  loud.  "When  I  got  up  and  went  out  doors  I 
found  half  a  dozen  men  there."  This  evidence  was  admitted, 
as  stated  by  the  court,  for  the  purpose  of  showing  why  the 
witness,  Yetta,  left  home,  and  the  jury  were  told  by  the  court 
that  the  evidence  was  not  admissible  for  the  purpose  of  show- 


:\:   V. 


JANZEN  V.  THE  PEOPLE. 


491 


ing  that  defendant  had  committed  a  crime  on  Yttta,  and  they 
would  not  consider  it  for  that  purpose. 

The  defendant  testified  as  a  witness  in  his  own  behalf,  and 
on  cross-examination  admitted  that  ho  was  in  bed  with  Yetta 
on  the  morninjj  of  May  15 — the  day  he  was  arrested — but  ho 
testified  that  he  did  nothing  to  the  girl,  and  in  rebuttal  the 
court,  over  the  objection  of  the  defendant,  permitted  three 
witnesses  to  testify  that  on  the  morning  of  May  15  they  were 
in  the  defendant's  home  and  saw  him  in  bed  with  Yetta  Jan- 
zen,  in  the  act  of  having  criminal  sexual  intercourse  with  her. 
This  evidence  was  admitted  by  the  court,  as  stated  at  the 
time,  on  the  following  ground:  "I  wish  to  state  that  this 
evidence  is  admitted  because  the  defendant,  in  his  examination, 
testified  that  he  had  gone  into  this  room  and  got  into  the  bed 
with  this  girl,  but  had  done  nothing  else.  If  it  was  material 
and  competent  for  him  to  testify  as  to  that  matter  I  think  it  is 
proper  that  the  prosecution  should  bo  permitted  to  contradict 
it,  and  for  that  purpose  I  admit  it  in  evidence,  and  the  jury 
will  understand  tbat  they  are  not  hearing  it  for  the  purpose  of 
trying  this  defendant  for  any  crime  committed  on  Yetta,  but 
simply  for  the  purpose  of  contradicting  his  own  testimony.'' 

If  the  evidence  of  the  girl,  Yetta,  and  of  the  three  other 
witnesses,  in  regard  to  what  occurred  on  the  morning  of  May 
15,  proves  anything,  it  proves  the  defendant  guilty  of  a  rape 
on  the  person  of  Yetta  Janzen— an  ott'ense  for  which  the 
defendant  was  not  indicted  and  for  which  he  was  never  put 
upon  trial;  and  the  question  presented  is,  whether  the 
admission  of  evidence  which  proves  the  defendant  guilty  of  a 
crime  not  charged  in  the  indictment  is  error,  for  which  the 
judgment  should  be  reversed. 

In  Russell  on  Crimes  (Vol.  2,  p.  772),  the  author  says :  "No 
evidence  can  be  admitted  which  does  not  tend  to  prove  or  dis- 
prove the  issue  joined.  In  criminal  proceedings  the  necessity 
is  stronger,  if  possible,  than  in  civil,  of  strictly  enforcing  the 
rule  that  the  evidence  is  to  be  confined  to  the  point  in  issue. 
*  *  *  It  is  therefore  a  general  rule  that  the  facts  proved 
must  be  strictly  relevant  to  the  particular  charge,  and  have 
no  reference  to  any  conduct  of  the  prisoner  unconnected  with 
such  charge." 

It  will  be  remembered  that  the  crime  charged  against  the 
defendant  in  the  indictment  was  a  rape  on  the  person  of  Mary 


^;.,.('r*!i 


,1     1 


'W 


492 


AMERICAN  CRIMINAL  REPORTS. 


I 


i\yi 


Janzon.  Any  cvidonco  which  tendod  to  i)rovc  the  (Icroiidiint 
guilty  of  tho  crimo  allegod  in  tiic  indiotniont  was  propci'  lor 
tijo  consideration  of  tho  jury,  hut  evidence  wliich  tenchd  to 
prove  him  guilty  of  another  crime — another  rape — on  some 
l)erson  not  named  in  the  in«lict;nent,  was  not  coin[)i't('nt. 
When  a  dofen(hint  is  put  upon  trial  on  an  indictment  lie  is 
presumed  to  bo  ready  to  meet  the  charge  contained  in  tho 
indictment,  but  ho  is  n<jt  i)resumod  to  be  read}'  toih'fend  against 
a  charge  not  nuido  against  him  therein,  nor  does  the  law 
require  iiim  to  meet  such  acluirge.  In  Wiuirton  on  Anu'iican 
Criminal  Law  (Sec.  Go5),  theauthor,  among  other  things,  says: 
"It  is  under  no  circumstances  ailmissiblo  for  tho  prosecutor  to 
put  in  evidence  tho  defendant's  general  bad  character  or  liis 
tendency  to  commit  the  jtarticuhir  oH'onso  charged  ;  nor  is  it 
admissible  to  prove  independent  crimes,  even  though  of  tiio 
same  general  character,  except  wiien  falling  strictly  witliin 
the  exceptions  above  stated."  The  exceptions  alluded  toby 
the  author  would  not  embrace  the  evidence  under  considera- 
tion. In  Parl'inmn  v.  Pc'(>j>h\  135  111.  4ul,  a  similar  (jiiestion 
arose,  and  it  was  held  that  evidence  tending  to  prove  a  similar 
but  distinct  oirense  from  that  for  which  one  is  being  tried  is  not 
admissible  for  the  purpose  of  raising  an  inference  or  ])resunii). 
tion  that  tho  prisoner  committed  the  i)articular  act  for  wliich 
he  is  on  trial.     See,  also,  Baker  v.  ]\'<)i>le,  105  III.  452. 

In  criminal  cases,  when  it  becomes  necessary  to  prove  a 
guilty  knowledge  on  the  part  of  a  defendant,  evidence  of  other 
offenses  committed  by  him,  though  not  charged  in  the 
indictment,  may  be  admissible  for  that  jjurpose.  Thus,  upon 
an  indictment  for  uttering  a  forged  bank  note,  knowing  it  to 
be  forged,  evidence  may  be  given  of  other  forged  notes  having 
been  uttered  by  the  prisoner  in  order  to  show  his  knoAvlcdji'o 
of  the  forgery.  (2  Kussell  on  Crimes,  777.)  The  case  under 
consideration,  however,  is  not  a  case  of  that  character,  and  the 
rule  there  announced  has  no  application  to  this  case.  It  is 
true  that  the  court  undertook  to  confine  the  application  of 
the  testimon}'^  of  Yetta  Janzen  to  the  question  why  she  had 
left  home,  and  to  confine  the  application  of  the  evidence  of 
the  three  witnesses  to  a  mere  contradiction  of  the  defendant's 
testimony  that  be  had  done  nothing  when  in  bed  witli  Yetta. 
There  are  cases  where  evidence  not  admissible  generally  may 
be  admitted  for  a  single  purpose,  and  may  be  confined  to  that 


JANZEN  V.  THE  PEOPLE. 


493 


piirposo  by  tho  instructirn  of  the  court.  But  this  is  not  a 
case  of  that  character,  lloro  the  dcfencUint  was  indicted  for 
a  rape  on  his  own  daughter — a  girl  twelve  years  old. 

Oil  tlio  trial  of  tho  defendant  for  tiiis  charge,  would  it  be 
possible  to  prove  that  ho  had  been  guilty  of  a  like  crime  on 
another  daughter  who  was  only  a  year  or  two  older,  and  con- 
lino  the  effect  of  such  evidence  on  the  mind  of  tho  jury  to 
some  trivial  or  insignificant  matter  that  arose  on  the  trial  ? 
The  answer  to  the  question  is  obvious.  It  is  true  that  the 
coiniiiission  of  one  offense  is  not  evidence  of  the  commis3i(m  of 
anotlier  and  an  independent  offense,  yet  the  proof  of  the  one 
cannot  be  said  to  be  without  influence  on  the  mind  of  the  juror, 
convincing  him  that  the  defendant  may  be  guilty  of  the  other. 
In  S/iiffcr  V.  Commonwealth,  72  Pa.,  (50,  in  speaking  on  this 
subject,  the  court  said:  "  Logically,  the  commission  of  an  inde- 
pendent offense  is  not  proof,  of  itself,  of  the  commission  of 
anotlier  crime,  yet  it  cannot  be  said  to  be  witliout  influence  on 
tlie  mind,  for,  certainly',  if  one  bo  sliown  to  bo  guilty  of  an- 
other crime  equally  heinous,  it  will  prompt  a  more  ready  belief 
that  he  might  have  committed  the  one  with  whicli  he  is 
cliai'ged.  It  therefore  predisposes  the  mind  of  the  juror  to 
believe  the  prisoner  guilty.  *  *  *  It  is  not  only  unjust  to 
tlie  prisoner  to  comiiel  him  to  acquit  himself  of  two  offenses 
instead  of  one,  but  it  is  detrimental  to  justice  to  burden  a  trial 
witli  multiplied  issues  tliat  serve  to  confuse  and  misleatl  a  jury." 

Whether  the  defendant  was  guilty  of  the  charge  contained 
in  tlie  indictment  was  a  question  for  the  jury,  and  it  was  the 
riglit  of  the  defendant  to  have  that  question  fairly  submitted 
to  them.  That  has  not  been  done.  The  evidence  of  an  inde- 
pendent offense  was  calculated  to  ])rejudice  the  jury,  and  we 
think  it  was  error  to  admit  that  evidence. 

Tlie  judgment  will  be  reversed  and  the  cause  remanded. 

Reversed  and  remanded. 


"^oir..— Evidence— Ren  gestae— Hcnrsat/.— On  a  prosecution  for  rape  of  a 
child  thirteen  years  of  age,  it  was  error  to  permit  the  people  to  show  a  con- 
versation between  prosecutrix  and  a  friend  regarding  tiie  oifense,  five  months 
after  its  commission,  when  her  only  reason  for  not  complaining  before  was 
that  respondent  told  her  that  if  she  told  it  would  be  worse  for  her,  and  that 
she  was  afraid  of  liim.     People  v.  Duncan,  104  Mich.  4C0. 

A  witness  in  a  rape  case,  after  testifying  that  before  the  commission  of 
the  offense  she  saw  respondent  pulling  prosecutrix  around,  said  that  her 
husband  remarked  about  it  at  tlie  time.    In  his  argument  the  prosecuting 


494 


AMERICAN  CRIMINAL  REPORTS. 


^f.i    .    f 


attorney  referred  to  the  act  as  being  an  improper  overture,  so  notorious  aa 
to  attract  tlie  attention  of  botli  witness  and  her  husband.  Held,  tliat  in 
admitting  said  testimony  error  was  committed,  which  was  rendered  harm- 
ful by  tlie  prosecuting  attorney's  remarks.    Id. 

Liaprosecj'tion  for  rape  of  a  child  thirteen  years  old,  prosecutrix  testified 
that  she  never  had  intercourse  before  the  alleged  offense;  that  it  did  not  liurt 
her;  that  no  blood  followed,  and  that  she  was  not  sore  the  next  day.  Ilehl. 
that  it  was  error  to  refuse  to  allow  respondent  to  show  that  the  natural 
result  of  irtercourse  with  one  of  prosecutrix's  age,  would  be  pain,  followed 
by  blood  and  soreness.  Id.  (This  may  be  good  law  under  certain  circum- 
stances, but  not  as  a  general  proposition. — Ed.) 

When  the  statement  of  a  witness  is  unreasonable,  the  jury  are  not  bound 
to  accept  it  as  true.     Id. 

What  became  of  the  child  born  to  the  prosecutrix  in  a  rape  case  as  the 
result  of  the  offense,  is  immaterial  on  the  trial  of  the  alleged  offender.    Id. 

Previous  cliastity  of  prosecutrix. — On  a  trial  for  rape  it  is  proper,  on 
cross-examination,  to  ask  prosecutrix  whether,  about  the  time  of  the  alleged 
offense,  she  had  intercouree  with  another  man. — State  v.  Hallenbeck,  67, 
Vt.  34.     (I  doubt  the  soundness  of  this  proposition. — Ed.) 

On  a  trial  for  rape  it  is  proper  to  ask  prosecutrix  whether  before  and 
alter  the  alleged  offense,  her  relations  with  defendant  were  not  cordial.    Id. 

Where,  on  a  trial  for  rape,  a  question  to  pi'osecutrix  on  cross-examina- 
tion is  improperly  excluded,  the  error  is  not  cured  by  an  offer  to  allow 
defendant  to  examine  her  on  the  same  subject  when  introducing  his 
evidence.    Id. 

On  a  trial  for  rape  the  mother  of  prosecutrix  can  not  testify  as  to  what  a 
person  told  her  in  regard  to  statements  of  prosecutrix  respecting  the  alleged 
offense.    Id. 


i\  ! 


(Crown  Case  Eeserved.) 

Eeo.  v.  Tomlinson. 

(18  Cox's  Criminal  Law  Cases,  75.) 

Threats  to  Extort:  Demand  of  money  with  menacea — Threat  of  accusa- 
tion of  immorality. 

The  expression  "  menaces"  in  Sect.  44  of  24  and  25  Vict.,  c.  96,  includes 
threats  of  danger  to  a  person  by  the  making  of  accusations  of  miscon- 
duct against  him,  although  the  accusations  are  not  of  criminal  but  of 
immoral  conduct 

(Before  Lord  Eussoll,  C.  J.,  Pollock,  B.,  Wills,  Charles  and 
Lawrence,  JJ.) 
Case  stated  by  Lawrence,  J.,  as  follows : 


REG.  V.  TOMLINSON. 


495 


William  Beswick  Tomlinson  was  tried  before  me  at  the 
assizes  at  Carnarvon  oi;  the  26th  day  of  October,  189i,  on  an 
indictment  charging  him  under  the  44th  section  of  24  and  25 
Vict.,  c.  96,  with  sending  a  letter  to  one  John  Thomas  Mor- 
gan, demanding  money  with  menaces,  and  in  a  second  count 
of  the  said  indictment  with  uttering  the  said  letter. 

It  was  proved  at  the  trial  that  the  ])risoner,  who  was  in  the 
employment  of  the  prosecutor,  was  discovered  by  the  prose- 
cutor and  his  wife  in  the  act  of  connection  with  a  woman 
named  Kate  Yende,  in  the  prosecutor's  stable,  in  consequence 
of  which  the  prosecutor  discharged  the  prisoner  from  his 
service. 

On  the  25th  day  of  June  the  prosecutor  received  the  follow- 
ing letter  in  the  hand-wi'iting  of  the  prisoner,  by  post : 

(Copy.)  18  Penrallt  street,  Carnarvon. — On  the  rocks  only 
had  a  dav  and  half  work  since  leaving  Wrexham  i  want  you 
to  let  me  have  10s  so  that  i  can  get  a  can  nnd  brush  and  if  i 
do  not  get  it  on  or  before  Tuesday  morning  i  shall  let  IVIrs. 
Morgan  and  your  friends  know  of  your  doings  with  (Kate 
Yende)  you  must  understand  i  am  not  going  to  suffer  to  hide 
you,  i  have  had  enough  of  it.  You  are  at  liberty  to  show  this 
to  your  lawyer  or  any  one  else  if  you  like,  but  i  shall  certainly 
do  it.    Yours,  W.  B.  Tomlinson. 

At  the  close  of  the  case  for  the  prosecution  it  was  con- 
tended by  the  counsel  for  the  prisoner  that  the  menaces  con- 
tained in  the  letter  were  not  menaces  within  the  meaning  of 
sect.  44  of  24  and  25  Vict.,  c.  96,  but  that  such  menaces  must 
be  of  injury  or  violence  to  the  person  or  property,  or  of  ac- 
cusation as  contained  in  sects.  46  and  47  of  the  said  statute. 

I  overruled  the  objection  and  left  the  case  to  the  jury, 
who  found  the  prisoner  guilty,  and  I  released  the  prisoner  on 
his  own  recognizances  until  the  determination  of  this  case. 

The  question  for  the  opinion  of  the  court  is,  whether  I  was 
light  in  holding  that  the  threats  contained  in  the  letter  above 
set  out  are  such  threats  as  are  contemplated  by  sect.  44  of 
the  above-mentioned  statute. 

24  and  25  Vict.,  o.  96,  s.  44,  enacts  that :  Whosoever  shall 
send,  deliver,  or  utter,  or  directly  or  indirectly  cause  to  be 
received,  knowing  the  contents  thereof,  any  letter  or  writing, 
demanding  of  any  person  with  menaces,  and  without  any 
reasonable  or  probable  cause,  any  property,  chattel,  money, 


T  t 


1M  "K'Ur 
•-■    ■■■  »  '1 


IV 'Ml''    f 


496 


AMERICAN  CRIMINAL  REPORTS. 


valuable  security,  or  other  valuable  thing,  shall  be  guilty  of 
felony,  and  being  convicted  thereof  shall  be  liable,  at  tlie  dis- 
cretion of  the  court,  to  be  kept  in  penal  servitude  for  life,  or 
for  any  terra  not  less  than  three  years  [now  under  27  and  28 
Vict.,  c.  47,  s.  2,  five  years]  or  to  be  imprisoned  for  any  term 
not  exceeding  two  years,  with  or  witiiout  hard  labour,  and 
with  or  without  solitary  confinement,  and,  if  a  male  under 
the  age  of  sixteen  years,  with  or  without  whipping. 

Lord  Russkll,  C.  J.  The  point  is  not  altogether  free  from 
difliculty,  and  it  is  a  matter  of  regret  that  no  one  is  instructed 
to  argue  it.  The  question  turns  upon  the  construction  of  the 
44th  section  of  the  Larceny  Act,  1801.  But  it  is  necessary  in 
order  to  determine  the  true  construction  of  that  section  to  look 
at  certain  other  sections  cognate  to  the  subject  treated  of  in 
that  section.  Now,  it  is  enacted  by  section  44  that:  [His 
Lordship  read  the  section  which  is  set  out  above.]  Section  45 
provides  that  "Whosoever  shall,  with  menaces  or  by  force, 
demand  any  property,  chattel,  money, valuable  security ,or  other 
valuable  thing  of  any  person  with  intent  to  steal  the  same, 
shall  be  guilty  of  felony."  And  the  40th  section  provides  that, 
"AVhosoever  shall  send,  deliver,  or  utter,  or  directly  or  indi- 
rectly cause  to  be  received,  knowing  the  contents  thereof,  any 
letter  or  writing  accusing,  or  threatening  to  accuse,  any  other 
person  of  any  crime  punishable  by  law  with  death  or  penal 
servitude  for  not  less  than  seven  years,  or  of  any  assault  with 
intent  to  commit  any  rape,  or  of  any  attempt  or  endeavor  to 
commit  any  rape,  or  of  any  infamous  crime  as  hereinafter 
defined,  with  a  view  or  intent  in  any  of  such  cases  to  extort  or 
gain  by  means  of  such  letter  or  writing  any  property,  etc., 
from  any  person,"  shall  be  guilty  of  the  offense,  and  subject  to 
the  punishment  named  in  the  statute.  It  is  to  be  observed  that 
the  accusations  to  which  that  section  relates  are  accusations  of 
crime.  The  only  other  section  which  is  material  is  the  49th, 
by  which  it  is  enacted  that,  "  It  shall  be  immaterial  whether 
the  menaces  or  threats  hereinbefore  mentioned  be  of  violence, 
injury  or  accusation,  to  be  caused  or  made  by  the  offender  or 
any  other  person."  To  come  back  to  what  is  the  true  con- 
struction of  section  44,  and  to  whether  the  letter,  of  the  writ- 
ing and  sending  of  which  the  prisoner  has  been  found  guilty, 
is  evidence  of  a  demanding  which  menaces  any  property, money, 


REG.  V.  TOMLINSON. 


497 


etc.,  the  point  seems  to  have  been  taken  by  counsel  for  the 
prisoner  that  menaces  within  the  meaning  of  that  section 
means  menaces  importing  a  threat  of  injury  to  the  person  or 
property.  In  other  words,  menaces  or  threats  suggesting,  if  not 
coupled  with,  injury  to  the  person  or  property.  It  is  to  be  ob- 
served that  the  very  next  section  draws  a  distinction  between  the 
two  classes  of  menaces,  because  it  says,  "  "With  menaces  or  by 
force."  Therefore,  it  would  seem  that  there  was  contemplated 
under  the  Avord  "  menaces  "  not  merely  threats  of  injury  to  the 
person  or  property,  but  menaces  which  would  involve  injury  to  a 
third  person  intended  to  be  injured,  and  would  induce  the  person 
to  whom  the  menaces  are  addressed  to  part  with  money  or  valu- 
able property.  In  this  case  we  can  well  see  how  that  a  men- 
ace of  some  indecency  of  conduct  would  be  a  holding  out  of  a 
threat  of  injury  much  more  serious  than  if  the  word  were  con- 
fined to  the  class  of  cases  suggested.  It  would  be  a  matter  of 
regret  if  the  court  felt  itself  compelled  to  put  a  narrovr  con- 
struction upon  the  term.  It  was  further  suggested  that  sec- 
tion 49,  which  states  that  it  shall  be  immaterial  whether  the 
menaces  or  threats  mentioned  in  the  previous  sections  be  of 
violence,  injury  or  accusation,  to  be  caused  or  made  by  the 
offender  or  any  other  person,  means  violence  to  the  per- 
son, injury  to  the  person,  or  accusation  in  the  sense 
in  which  those  words  are  used  in  section  46,  which  would 
be,  so  far  as  the  word  "accusation"  is  concerned,  accus- 
ation of  crime.  Upon  the  whole,  though  not  without 
doubt,  I  have  come  to  the  conclusion  that  the  word  "  men- 
aces" in  section  44  is  to  have  a  wider  meaning  than  that  sug- 
gested ;  and  that  it  may  well  be  held  to  include  threats  of  dan- 
ger by  the  making  of  accusations  of  misconduct,  although  that 
misconduct  may  not  have  amounted  to  a  crime.  I  think  there 
is  some  authority  for  that  from  what  is  given  as  the  meaning 
of  the  word  "  menace "  in  the  dictionaries.  In  some,  as  in 
Johnson's  dictionary,  its  meaning  is  given  as  merely  a  "  threat," 
but  in  Webster's  dictionary  it  is  defined  amongst  other  things 
as  "  the  show  of  a  probable  evil  or  catastrophe."  There  being 
no  definition  of  the  precise  meaning  that  the  legislature 
intended,  we  have  to  look  at  the  ordinary  and  natural  meaning 
of  the  word,  unless  that  meaning  is  displaced  by  anything 
contained  in  the  statute.  It  does  not  seem  to  me  that  there  is 
anything  in  the  statute  which  would  authorize  us  to  displace 


/i    ! 


!l 


493 


AMERICAN  CRIMINAL  REPORTS. 


that  meaniniT.     I  have  said  that  there  is  no  authority ;  but  in 
the  case  of  lieff.  v.  Smith  (19  L.  J.  80,  M.  C;  1  Den.  C.  C,  510; 
2  C.  &  K.,  882),  a  letter  was  written  to  the  effect  tliat  if  a  sum 
of  money  was  paid,  an  impending  catastrophe  would  be  averted; 
and  the  question  was,  wiiether  this  came  within  the  earlier 
statute  of  7  and  8  Geo.  -t,  c.  29,  s.  8,  which  enactment  is  in 
point  of  fact  reproduced  in  tlie  statute  on  which  the  indict- 
ment in  the  present  case  is  based.     In  that  case  Wilde,  C.  J., 
said :    "  Here  the  demand  of  money  is  accompanied  by  a  state- 
ment that,  if  the  money  be  not  paid,  the  evil  before  spoken  of 
in  the  letter  will  happen,  and  that  evil  is  that  certain  burglars 
of  a  most  horrid  gang  will  break  into  the  house,  burn  the 
banker's  books,  and  cause  a  stoppage  of  the  bank.    We  are  all 
of  opinion  that  the  terms  of  the  letter  amount  to  a  distinct 
menace  tliat  the  evil  will  happen  unless  the  money  is  paid." 
There  is  one  other  case  which  is  reported  in  Leigh's  Crown 
Cases,  at  p.  288,  called  Walton's  case.     I  refer  to  this  case 
because,  while  stating  what  I  conceive  to  be  tlie  meaning  of  the 
section,  it  points  out  what  is  the  character  of  the  threat  before 
it  comes  within  the  section.     There  the  prisoner  had  obtained 
money  by  threatening  to  execute  a  distress  warrant,  which  he 
had  no  authority  to  do,  and  the  jury  were  directed,  as  a  mat- 
ter of  law,  that  the  conduct  of  the  prisoner  constituted  a  men- 
ace within  the  statute. 

The  court  for  Crown  Cases  Reserved,  however,  quashed 
the  conviction  on  the  ground  that  it  was  not  for  the  judge  to 
do  more  than  lay  down  the  principle  upon  which  the  jury 
ought  to  proceed  in  considering  whether  the  threat  which  had 
been  used  there  was  or  was  not  within  the  statute,  and  that 
it  was  not  for  him  to  say  as  a  matter  of  law  that  it  did  amount 
to  a  menace  within  the  statute.  The  court  further  held  that 
he  ought  to  have  told  the  jury  that  the  question  was  whether 
or  not  the  threat  or  words  used,  which  were  said  to  amount  tea 
threat,  was  such  as  would  naturally  unsettle  the  mind  of  the 
person  on  whom  it  operated,  and  cause  him  to  act  in  a  way  in 
which  he  would  not  otherwise  act.  In  this  case  no  complaint 
is  made  of  the  summing  up  of  the  learned  judge;  therefore,  it 
must  be  assumed  that  that  was  the  character  of  his  summing 
up.  It  seems  to  me  that  there  is  no  restriction  placed  by  the 
statute  upon  the  ordinary  meaning  of  the  term  menaces  in 
section  44,  and  that,  therefore,  this  conviction  must  be  aiiirmed. 


PEOPLE  V.  DURRANT. 


499 


Pollock,  B.  I  have  come  to  the  same  conclusion,  and  have 
nothing  to  add. 

"Wills,  J.  I  am  of  the  same  opinion.  I  think  that  the 
case  comes  within  section  49  of  the  act — I  do  not  think  that  it 
is  necessary  even  to  rely  upon  that  section,  for  I  think  that 
the  injury  with  which  a  person  is  threatened  should,  in  order 
to  bring  the  menace  within  section  44,  receive  a  liberal  inter- 
pretation, and  that  it  does  not  mean  an  actionable  injury  only 
but  includes  any  injury  which  is  calculated  to  do  a  person 
harm.  1  also  think  that  the  accusation  is  certainly  not  to  be 
confined  to  cases  which  come  within  section  46.  What  that 
section  says  is  that,  if  the  accusation  takes  the  form  of  the 
cases  stated  in  the  section,  then  a  larger  amount  of  punish- 
ment is  to  be  awarded.  I  think  that  the  term  "  accusation  " 
means  that  which  in  the  ordinary  sense  of  the  term  would 
amount  to  an  accusation.  I  have  always  thought  that  per- 
sons who  are  practiced  upon  in  this  way  are  not  possessed  of 
the  ordinary  powers  of  resisting,  therefore,  I  think  that  a  lib- 
eral interpretation  should  be  put  upon  the  words.  In  my 
opinion  this  conviction  should  be  affirmed. 

Chaulks,  J.  I  am  of  the  same  opinion.  I  do  not  think 
that  in  either  sections  45,  46,  47,  or  49  are  any  words  which 
would  justify  us  in  placing  the  restrictive  meaning  upon  the 
words  in  section  44  which  it  is  sought  to  place  upon  theoL 

Lawrence,  J.,  concurred. 
Conviction  affirmed. 


People  v.  Durkant. 

(116  California,  179.) 

McuDER :  Selection  of  jury  list—Special  venire— Impaneling,  examination 
and  qualification  of  jurors—Review  of  verdict — Proof  of  motive— Con- 
tempt proceedings — Evidence — Trial — Argiiment  of  counsel — Orounda 
fur  neiD  trial — Newspaper  articles. 

1.  The  minutes  of  the  secretary  of  the  judges  of  the  Superior  Court  of  San 
Francisco  County,  showing  the  selection  and  return  of  the  jury  list, 
as  required  by  statute,  may  be  amended,  when  incomplete,  to  conform 
to  the  facts. 


!   ■« 


^!-H 


VAJJ 


500 


AMERICAN  CRIMINAL  REPORTS. 


10. 


11 


12. 


13. 


14. 


On  a  challenge  to  the  panel,  on  the  ground  tliat  the  jury  list  was  not 
legally  selected  by  the  judges,  the  testimony  of  the  presiding  judge  is 
admissible  to  supplement  the  record  when  incomplete,  and  to  show  the 
action  actually  taiken. 

The  fact  that  some  of  the  persons  selected  a.s  jurors  in  making  up  the 
jury  list  do  not  possess  the  necessary  qualitications  is  not  a  ground  for 
challenge  to  the  panel. 

Under  the  provision  of  the  present  constitution  of  California  by  retain- 
ing in  force  all  existing  laws  relative  to  the  judicial  system  and  making 
them  applicable  to  the  new  system,  providing  for  the  selection  of  jurors 
in  San  Francisco  county,  the  statute  is  not  rendered  unconstitutional, 
by  the  subsequent  amendments  making  it  conform  to  the  proHent 
system. 

"'""  ■  T'lct  that  jurors  were  summoned  by  special  venire,  without  having 
<ir«t  e.clv.  usted  all  the  names  upon  the  regular  list,  is  not  ground  for 
challenge  to  the  panel. 

The  action  of  the  court  in  disallowing  a  challenge  to  a  juror  for  cause 
will  not  be  reviewed  where  the  defendant  did  not  challenge  tlie  juror 
peremptorily,  and  he  had  not  exhausted  his  peremptory  challenges. 

Under  a  statute  providing  that  a  court  may  for  cause  permit  a  ciiallonge 
to  be  taken  to  a  juror  after  he  is  sworn,  and  before  the  jury  is  com- 
pleted, a  court  may  permit  the  re-examination  of  a  juror  by  eitlier  the 
people  or  the  defendant  on  a  matter  coming  to  their  knowledge  after 
his  acceptance,  and  before  the  completion  of  the  panel,  and  may,  in  its 
discretion,  allow  a  peremptory  challenge  to  be  taken,  though  such 
examination  discloses  no  ground  of  challenge  for  cause. 

The  correctness  of  a  verdict  which  has  been  sustained  by  the  trial  court 
will  not  be  reviewed  on  appeal  on  arguments  directed  to  the  credibility 
of  the  witnesses  or  the  weight  to  be  given  to  their  testimony. 

A  verdict  of  conviction  will  not  be  disturbed  on  appeal,  as  unsupported 
by  evidence,  unless  the  evidence  to  sustain  it  is  so  slight  as  to  make 
clear  the  inference  that  it  must  have  been  rendered  under  the  influ- 
ence of  passion  or  prejudice. 

While  absence  of  proof  of  a  motive  for  the  commission  of  a  crime  is  a 
circumstance  in  favor  of  the  defendant,  such  proof  is  not  indispensable 
to  a  conviction. 

The  issuance  of  process  for  contempt  charged  to  have  been  committed 
by  the  publishers  of  newspapers  during  the  progress  of  a  cause  rests 
entirely  in  the  sound  discretion  of  the  court,  and  can  not  he  controlled 
by  the  parties,  nor  have  they  any  right  of  appeal  from  the  court's 
action  in  the  matter. 

Proof  that  a  witness  is  a  practicing  physician  and  surgeon,  and  that  he 
performed  an  autopsy  on  the  body  of  a  dead  person,  qualifies  him  to 
give  an  opinion  as  to  the  means  used  to  produce  death,  it  being  con- 
ceded that  the  question  is  a  proper  one  for  expert  testimony. 
The  use  of  a  dressmaker's  frame  in  court  for  convenience  in  exhibiting 
the  clothing  of  a  murdered  woman,  which  was  introduced  in  evidence, 
and  in  regard  to  which  much  testimony  was  taken,  was  not  prejudicial 
to  the  defendant,  no  claim  being  made  that  the  frame  represented  the 
height,  size,  or  figure  of  the  deceased. 
It  ia  the  right  and  duty  of  a  trial  court,  on  its  own  motion,  to  curtail 


PEOPLE  V.  DURRANI. 


501 


<n,  to  curtail 


the  cross-examination  of  a  witness  on  a  collateral  matter,  which  is 
wholly  irrelevant,  and  as  to  which  the  witness  could  not  be  iinpciiched. 

15.  Under  a  statute  (which  gives  a  witness  the  right  to  be  protected  from 
irrelevant,  improper,  or  insulting  questions),  where  a  lady  as  a  witness 
had  stated  that  she  had  seen  the  defendant  since  a  date  named,  a  fol- 
lowing question,  "That  is,  you  imagine  you  have?"  was  properly 
excluded  by  the  court. 

16.  A  photograph  of  a  person  charged  to  have  been  murdered,  though  taken 
two  years  before  her  death,  is  admissible  in  evidence  when  shown  to 
be  a  fair  representation  of  her  as  she  appeared  at  the  time  of  her  death. 

17.  Where  a  witness  has  given  testimony  in  apparent  variance  with  his 
testimony  on  the  preliminary  examination,  it  is  not  improper  for  the 
party  calling  him  to  call  his  attention  to  his  former  testimony,  for  the 
purpose  of  refreshing  his  recollection. 

18.  It  is  not  error  to  overrule  an  objection  to  a  question  the  answer  to 
which  may  be  relevant,  though,  when  given,  it  proves  not  to  be. 

19.  While  a  hypothetical  question  must  be  based  on  facts  in  evidence,  it 
need  not  embrace  all  the  facts  shown,  nor  be  limited  to  such  facts,  but 
nifvy  be  addressed  to  any  niisonable  theoiy  which  may  be  drawn  from 
them. 

20.  While  an  opinion  is  not  admissible  on  a  matter  of  common  knowledge 
or  experience,  its  admission  is  harmless  error  where  it  accords  with 
such  common  knowledge. 

21.  A  witness  for  the  prosecution  testified  that  he  fitted  certain  tools,  found 
apparently  in  the  possession  of  another  than  defendant,  in  marks  on  a 
door,  which  they  did  not  fit,  after  which  defendant  introduced  the 
tools  in  evidence.  Held,  that  it  was  proper  to  permit  the  prosecution 
to  introduce  the  door  in  evidence  on  rebuttal,  and  to  have  the  witness 
fit  the  tools  to  the  marks  in  the  presence  of  the  jury. 

22.  A  question  to  a  defendant  as  a  witness,  asking  if  he  had  not  prepared  a 
statement  which  he  sealed  and  delivered  to  his  attorneys,  with  certain 
instructions  as  to  opening  it,  is  not  subject  to  objection  on  the  ground 
that  such  statement  would  be  privileged,  the  question  being  merely 
preliminary,  and  such  contents  not  being  privileged  as  to  any  one 
acquiring  a  knowledge  of  tliem  otherwise  than  through  the  attorneys. 

23.  Where  a  question  to  a  witness  by  the  prosecution  is  admitted  over 
objection,  on  the  ground  that  it  is  preliminary,  with  a  statement  by 
the  court  that,  if  not  followed  up,  the  testimony  will  be  stricken  out  on 
motion,  and,  the  answer  being  adverse  to  the  prosecution,  the  matter 
is  dropped  the  defendant  is  not  prejudiced,  and  will  be  presumed  to 
have  been  satisfied  to  allow  the  testimony  to  remain  unless  he  moves 
to  strike  it  out. 

24  The  fact  that  a  person  was  brought  before  the  court  for  contempt  dur- 
ing the  trial  of  a  defendent  for  murder,  charged  with  having  said  to  a 
juror  in  the  case,  "  If  you  don't  hang  him  [defendant],  we  will  hang 
you,"  and  was  given  a  hearing  in  the  presence  of  the  jury,  and  pun- 
ished for  the  contempt,  was  not  prejudicial  to  the  rights  of  defendant, 
who  did  not  instigate  nor  conduct  the  proceeding,  and  made  no  request 
that  the  jury  be  excluded. 

25.  The  use  by  a  district  attorney,  in  argument,  of  an  empty  box,  to  illus- 
trate the  quantity  of  gas  which  could  leak  in  a  given  time  and  under 


lt!i 


I     1 


m"  ••,  hi''[. 


^■ 


502 


AMERICAN  CRIMINAL  REPORTS. 


mil- 


-i'^yi 


-»tt 


circumstances  testified  to,  was  not  error  prejudicial  to  the  dcfcn<Iant; 
the  jury  being  cautioned  by  both  the  attorney  and  the  court  tliiit  the 
box  was  not  in  evidence,  nor  any  proof  of  its  capacity,  and  tliat  tlie 
statements  of  the  attorney  were  merely  by  way  of  argument 
26.  The  fact  that  tlie  newspapers  of  a  city  wliere  a  murder  was  cominitteil 
continued  to  publish  sensational  articles  in  regard  to  the  crime,  and 
after  defendant's  arrest,  both  before  and  during  his  trial,  treatt^il  him 
as  the  undoubted  criminal,  andaroused  public sentim«>nt  strongly  against 
him,  does  not  alone  show  that  he  did  not  have  a  fair  trial,  and  will 
not  require  the  granting  of  a  new  trial,  where  a  satisfactory  jmy  was 
obtained  without  defendants  having  exhausted  his  iieremptoiy  olial- 
lenges,  and  ea<jh  juror  makes  affidavit  that  he  neither  read  nor  lii'aid 
read  any  of  the  publications  during  the  tnal,  and  at  all  tiini>s  ohcyud 
the  injunctions  of  tlie  court,  and  was  not  influenceil  in  an  •  way  by 
anything  outside  the  evidence,  and  where  it  does  not  appeal*  tiiat 
defendant  was  prevented  from  making  his  full  defense. 

Appeal  from  a  judgment  of  the  Superior  Court  of  the  City 
and  County  of  San  Francisco  and  from  an  order  denying  a 
new  trial.    lion.  D.  J.  Murphy,  Judge. 

The  latter  part  of  instruction  X  asked  for  by  the  defendant, 
and  refused,  which  is  referred  to  in  the  opinion  of  the  court, 
was  as  follows :  "  It  is  safer  to  err  in  acquitting,  and  hotter 
that  many  guilty  persons  should  eseajw,  than  that  one  inno- 
cent man  should  suffer.  Justice  never  requii'ed  the  sacrifice 
of  a  victim;  an  erroneous  conviction  is  calculated  to  ]>r<»(hice 
incalculable  and  irreparable  mischief  to  individuals,  to  destroy 
all  confidence  in  the  justice  and  integrit}'  of  the  tribunals,  and 
to  introduce  an  alarming  train  of  social  evils  as  the  inevitable 
result."    The  further  facts  are  stated  in  opinion  of  the  court. 

John  11.  Dickinson,  Eugene  N.  Deuprey,  and  Henry  E. 
Monroe,  for  appellant. 

The  evidence  is  entirely  circumstantial,  and  will  not  bear  in 
any  way  the  test  of  the  law  as  it  is  established  upon  the  sul)joct 
of  circumstantial  evidence.  3  Rice's  Criminal  Evidence.  .54 r)-53, 
5G1-65;  Burrill's  Circumstantial  Evidence,  733-81;  Wills'  Cir- 
cumstantial Evidence,  173-94;  Starkie  on  Evidence,  9th  Ed., 
Sec.  586;  Gushing  on  Evidence,  296,  312,  313,  318,  319;  I^isli- 
op's  Criminal  Procedure,  3rd  Ed.,  Sec.  1106;  Phillips  on  Evi- 
dence, 459,  468;  Roscoe's  Criminal  Evidence,  7th  Ed.,  14; 
People  V.  Phipps,  39  Cal.  326;  People  v.  Anthony,  56  Cal. 
397-400;  People  v.  Travers,SS  Cal.  233;  People  v.  PadilfMi,42 
Cal.  535;  People  v.  Kerr  id',,  52  Cal.  447;   i'eople  v.  Carrillo,  70 


PEOPLE  V.  DURRANT. 


503 


Cal.  <54r);  People  v.  Ferry,  S4  Cal.  35;  Penj'le  v.  Strong,  30 
Ciil.  154;  Pi'oph  V.  Dmj'iH,  G4  Cal.  41-1,  and  many  other  cases. 
Tlio  unnatural  and  frightful  murder  committetl  created  in  the 
minds  of  the  people  a  sense  of  horror  and  overwhelminf;  bitter- 
ness, and,  under  tliis  condition  of  alFairs,  circumstantial  evi- 
dence ought  to  be  acted  on  with  great  caution.  3  llice's  Crim- 
inal Evidence,  500;  Phillips  on  Evidence,  458-08;  Roscoe's 
Criminal  Evidence,  7th  Ed.,  14. 

The  jury  failed  to  appreciate  the  principle  of  law  that  it  is 
safer  to  err  in  acquitting,  and  bettor  tliatmany  guilty  ])ersons 
should  escape  than  that  one  innocent  man  should  sutfer.  3 
Rice's  Criminal  Evidence,  504,  505;  Wills'  Circumstantial  Evi- 
dence, c.  6,  pp.  173-94.  The  identity  of  the  accused  was  not 
established  to  a  moral  certainty  beyond  a  reasonable  doubt. 
Harris  on  Identification,  Sees.  1,  3,  7;  3  Eice's  Criminal  Evi- 
dence, Sees.  303,  3(»4;  3  Greenleafs  Evidence,  Sec.  30;  Wills' 
Circumstantial  Evidence,  c.  47;  NicJiols  v.  People,  17  N.  Y.  114; 
McCurneyv.  People,  83  N.  Y.  408;  38  Am.  Rep.  450;  People  v. 
Nelson,  85  Cal.  430.  The  nllhi  of  the  defendant  was  set  up 
from  the  moment  of  his  arrest,  and  consistently  maintained 
throughout  the  subsequent  proceedings,  and  should  have  been 
given  more  weight  by  the  jury.  3  Rice's  Criminal  Evidence, 
420,  422.  427;  Wills  on  Circumstantial  Evidence,  108;  Walters 
V.  State, 'd\)  Ohio  St.  215;  Planketis/dp  v.  State,  56  Ark.  244; 
Peojjle  V.  Fony  Ah  Sing,  04  Cal.  253.  The  jury  failed  to  take 
into  consideration  the  good  character  of  the  defendant,  which 
outweighed  the  other  evidence,  and  which  should  have  raised 
a  reasonalde  doubt  in  the  minds  of  the  jury  as  to  the  defend- 
ant's guilt,  and  thereby  have  compelled  a  verdict  of  acquittal. 
People  V.  Ashe,i4:  Cal.  288;  People  v.  Poggett,(j2  Cal.  27;  Peo- 
ple V.  Sheparthon,  49  Cal.  030;  Peojde  v.  Bowman,  81  Cal.  500. 
The  character  of  the  defendant  having  been  proven  to  be  good, 
the  jury  should  have  believed  his  testimony.  People  v.  Cow- 
gill,  93  Cal.  590;  Chavihers  v.  People,  105  111.  409;  3  Rice's  Crim- 
inal Evidence,  159.  From  the  evidence  it  can  not  be  said  that 
no  other  person  than  the  defendant  committed  the  murder,  and 
it  was  therefore  the  duty  of  the  jury  to  acquit  the  defendant. 
People  v.  Kerrick,  52  Cal.  440;  People  v.  Brown,  56  Cal.  406; 
People  V.  Broim,  59  Cal.  345. 

The  prosecution  failed  to  show  any  motive  on  the  part  of 
the  defendant  for  the  killing,  and  it  therefore  became  the  nian- 


■)  I 


m 


1 


,1 ' 


* 


'  ri '  4%     ' : 


rlltMl 


501 


AMERICAN  CRIMINAL  REPORTS. 


ifest  duty  of  tho  jury  to  acquit.     People  v.  Bennett,  40  N.  Y. 
137;  Gordon  v.  People,  33  N.  Y.  501;  3  Kico's  Cnmirial  Evi- 
(lence,  444-47,  547.     The  court  erred  in  amending  the  record 
of  the  drawing-  of  the  trial  jurors,  which  did  not  show  comj)li. 
ance  with  the  law,  it  not  appearing  that  a  list  of  grand  jurors 
was  first  selected,  nor  shown  that  the  trial  jurors  were  soleoted 
from  qualified  jurors  from  the  dilferent  wards  in  proportion  to 
their  number.    Code  Civ.  Proc,  Sees.  205,  200.     Section  204 
of  the  Code  of  Civil  Procedure  is  unconstitutional,  because  it 
has  no  uniform  operation.     Const.,  Art.  I,  Sec.  11.     The  court 
erred  in  ordering  a  special  venire  without  any  showing  of 
necessity,  or  exhaustion  of  names  in  the  trial  jury  box.    Code 
Civ.  Proc,  Sees.  127-214.     Tiio  court  erred  in  disallowing  the 
challenge  to  the  jurors  Nathan  and  Crocker,  as  each  of  thoin 
had  formed  an  opinion  which  it  would  require  evidence  to 
remove.     State  v.  Murphj,  9  Wash.  204;   State  v.  Wilrox,  11 
"Wash.  215;  People  v.  Lamth'ia,  140  N.  Y.  87;  People  v.  Mi-QuKdc, 
110  N.  Y.  2S4;  People  v.  Fredericks,  100  Cal.  559;  Peuj^fe  v. 
Wells,  100  Cal.  227.    The  court  erred  in  pormitt-ng  juror 
Brown  to  be  re-examined  and  peremptorily  challenged  without 
good  cause.     People  v.  Pet/nolds,  10  Cal.  129.     The  court  erred 
in  not  citing  the  newspaper  editors  to  show  cause  why  thoy 
should  not  be  punished  for  contempt  of  court,  as  the  articles 
published  during  the  trial  tended  to  prejudice  the  minds  of  the 
public  and  jury.     Kapalje  on  Contempt,  70;  Jli/ers  v.  State,  46 
Ohio  St.  473,  15  Am.  St.  Kep.  G3S;  ILillimjsworth  v.  Puane, 
Wall.  C.  C.  77,  100,  102;  1  Bishop's  Criminal  Law,  288;  Wells 
on  Jurisdiction,  191;  State  v.  Jurhje,  etc.,  45  La.  Ann.  1250,  40 
Am.  St.  Re|).  282;  People  v.  Wilson,  04  III.  195,  10  Am.  liep. 
528;  Bayard  V.  Pasmiore,  3  Yeates  (Pa.),  438,  440;  State  v. 
Morrill,  10  Ark.  384;  In  re  Stttroo,  48  N.  H.  428,  97  Am.  Dec. 
020;  People  v.  Freer,  1  Caines,  518;  In  re  Crown  Bank,  L.  R. 
44  Ch.  Div.  049;  Cooper  v.  People,  13  Colo.  337;  In  re  Short- 
ridfje,  99  Cal.  532;  37  Am.  St.  Eep.  78;  People  v.  Stokes,  103 
Cal.  198;  42  Am.  St.  Rep.   102;  People  v.  Goldenson,  7(5  Cal. 
353.    The  court  erred  in  overruling  the  objection  on  tho  part 
of  the  defendant  to  the  question  of  the  witness,  Dr.  Farnum, 
as  to  the  purpose  for  which  wooden  blocks  were  employed  in 
relation  to  dead  bodies.     See  People  v.  Devine,  95  Cal.  227; 
People  V.  Wells,  100  Cal.  459;  Peojyle  v.  Lee,  78  Cal.  317;  Gale 
V.  People,  20   Mich.   101;    People  v.    Cahoon,   88   Mich.  430; 


h  'i  * 


!itS^>!v 


PEOPLE  V.  DURRANI. 


>05 


Zca/ii/  V.  State,  31  Nob.  5(10.  The  court  erred  in  allowing  a 
8tat(!inont  to  be  uuulo  of  u  hypothetical  case  introiiucing  facts 
of  which  there  was  no  proof.  An  opinion  liased  uj^a  such 
hypotlietical  statement  is  error.  Rogers'  Expert  Evidence, 
Sec.  27;  In  re  Will  of  Ames\  51  Iowa,  5t)0-0u3;  I/iirnt  v.  C, 
Ji.  L  t&  P.  li.  li.  Co.,  49  Iowa,  76;  State  v.  Cross,  6S  Iowa, 
180-1)2;  State  v.  Hanhy,  34  Minn.  430-33;  Wharton's  Criminal 
Evidence,  Dth  Ed.,  Sec.  418. 

Attorney- General  W.  F.  Fitzgerald  and  Assistant  Attorney- 
Oeneral  W.  If.  Anderson,  for  respondent. 

It  was  not  necessary  for  the  prosecution  to  show  any  motive 
for  the  commission  of  the  crime  by  the  defendant.  1  JJishop's 
Criminal  Evidence,  Sec.  1107;  Pointer  v.  United  States,  151  U. 
S.  413;  Johnson  v.  United  States,  157  U.  S.  320;  People  v.  Fish, 
125  N.  Y.  130;  People  v.  Trezza,  125  N.  Y.  740;  Peojde  v.  John- 
son, 139  N.  Y.  358,  302;  People  v.  Feigenhaum,  148  N.  Y.  030; 
State  V.  Coleman,  20  S.  C.  441;  Clifton  v.  State,  1^  Ala.  473; 
State  V.  Miller,  9  Iloust.  504;  MeLain  v.  Commomvealth,  99 
Pa.  St.  89,  99;  Sumner  v.  State,  5  Blackf.  579;  30  Am.  Dec. 
561.  If  the  jury  believed  the  witnesses  for  the  prosecution, 
it  was  their  duty  to  distrust,  and  their  privilege  to  disregard 
and  reject,  all  of  the  defendant's  testimony.  Code  Civ.  Proc, 
Sec.  2061,  subd.  3;  White  v.  Disher,  07  Cal.  402;  Peojde  v. 
Sprague,  53  Cal.  491;  People  v.  Ilicl's,  53  Cal.  354;  Peiple  v. 
Soto,  59  Cal.  307,  309,  370;  People  v.  Flgnn,  73  Cal.  511,  515; 
People  V.  Clark,  84  Cal.  573,  582,  583.  The  only  evidence  of 
alili  is  the  testimony  of  the  defendant  himself,  and  is  not  suf- 
ficient to  establish  it.  Burrill  on  Circumstantial  Evidence,  517, 
518;  Wills  on  Circumstantial  Evidence,  171.  All  the  circum- 
stances proven  concur  to  show  that  the  defendant  committed 
the  crime  charged,  and  are  inconsistent  with  any  other  rational 
conclusion.  This  is  all  the  law  requires.  People  v.  Shuler,  28 
Cal.  490;  Peojde  v.  Strong,  30  Cal.  151;  People  v.  Cronin,  34 
Cal.  202;  People  v.  Murray,  41  Cal.  67;  People  v.  Anthony,  56 
Cal.  397;  People  v.  Ilorrow,  60  Cal.  142;  People  v.  Parr,  61 
Cal.  554,  555;  People  v.  Keeley,  81  Cal.  210,  213;  People  v. 
Urquidas,  90  Cal.  239.  The  weight  to  be  given  the  evidence 
as  to  the  good  character  of  the  defendant  is  for  the  jury,  and 
if  they  believe  the  defendant  guilty  they  must  so  find,  not- 
withstanding his  good  character.    People  v.  Samuels,  00  Cal. 


■h-^ 


»^ 

600 


AMERICAN  CRIMINAL  REPORTS. 


11 


.-    — ^r 


IrH^,-^  t 


no,  101;  Pijoiile  V.  luilhium,  72  Cal.  212.  Tho  presidin^r  j,„]j,e 
luul  tho  inherent  right  and  power  to  correct  liisrcconl  to  make 
it  correspond  to  tho  facts.  Kaufman  v.  Sliain,  111  Cal.  Id,  ID, 
23;  52  Am.  St.  Rep.  i;5l>.  Tho  term  trial  jurors  wore  properly 
selected  in  compliance  with  tho  law.  Code  ('iv.  I'roc,  Sec. 
20-1;  People  v.  Youwj,  108  Cal.  8.  Tho  challenge  to  tho  spe- 
cial venire  was  properly  denied  by  tho  court,  as  tho  objection 
was  not  based  on  section  10(U  of  tho  Penal  Code,  and  tlioro  is 
no  other  ground  of  objection.  People  v.  /Southwell,  40  (Jal. 
141;  People  v.  Welch,  40  Cal.  174,  177,  178;  B/'utm'  v.  Snpe- 
rior  Court,d)i  Cal.  239,  253;  People  v.  Wallace,  lOi  Cal.  2S1-83. 
The  court  did  not  err  in  denying  the  defendant's  challenge  to 
the  jurors,  Nathan  and  Crocker.  Their  opinions  '  >unduil 
upon  public  rumor  or  newspai)or  statements,  whic  Ul  be 

removed  by  evidence,  were  not  un  jualilied,  and  theic.^re  did 
not  disqualify  them  as  jurors.  People  v.  McCanley,  1  Cal.  371); 
People  V.  Rei/nol(h,  10  Cal.  129;  People  v.  Williams,  17  Cal. 
142.  144,  140;  People  v.  Mahoney,  18  Cal.  180;  People,  v. 
SliiLO))(h,  22  Cal.  349,  351;  People  v.  Mu/p/ii/,  45  Cal.  13"; 
I*eople  V.  Brown,  59  Cal.  345,  354;  no  error  can  be  pi'osuined 
from  the  disallowance  of  a  challenge  for  cause  where  all  tho 
peremptory  challenges  have  not  been  exhausted.  Thompson 
on  Trials,  Sec.  120;  State  v.  Groch,  04  N.  C.  987;  State  o.  lleuden, 
94  :N".  C.  1021;  State  v.  Jones,  07  N.  C.  400;  State  v.  Pntehkt, 
100  N.  C.  007;  Williams  v.  State,  30  Tex.  App.  354,  308;  State 
V.  Le  Duff,  40  La.  Ann.  540;  People  v.  Aplln,  80  Mich.  393; 
Bfumhack  v.  German  Nat.  Bank,  40  Neb.  540,  542;  Prewittv. 
Lamlert,  19  Colo.  7,  9;  Jenkins  v.  Mitchell,  40  Neb.  004.  The 
court  did  not  err  in  allowing  the  challenge  of  Jirown,  after  he 
had  been  sworn  as  a  juror,  as  it  was  within  the  discretion  of 
the  court  so  to  do.  People  v.  Bemmerhj,  87  Cal.  117;  People 
V.  Montgomery,  53  Cal.  570.  But  even  if  the  court  did  err  in 
allowing  the  challenge  to  juror  Brown,  it  is  immaterial  as  the 
action  p^  the  court  is  not  the  subject  of  an  exception,  and  is 
not  open  to  review  upon  appeal.  Pen.  Code,  Sec.  1170;  People 
V.  Murphy,  supra;  People  v.  Colson,  49  Cal.  079;  People  v. 
Atherton,  51  Cal.  495.  The  allowance  of  the  challenge  to 
juror  Brown,  if  error,  was  error  without  injury,  as  the  defend- 
ant had  not  exhausted  all  of  his  perem])tory  challenges  when 
the  jury  was  finally  impaneled.  State  v.  llendy,  snpea; 
State  V.  Jones,  supra;    State  v.  Aarons.  43  La.  Ann.  4U0; 


f'H 


PEOPLE  V.  DUUIIANT. 


507 


T'l'i'itoi'ij  0.  /io?}i'/'f/i,  0  ^[<>nt.  12;  Pei>j>le  v.  P'oin/er,  104  Midi. 
4^11;  iSfdte  v.  Kiuwiiuin,  oJJ  Minn.  541,  544;  2Vi(niq)Hoii  v.  Dmuj' 
lass,  :j5  W.  Vu.  337;  State  v.  Chlng  LIikj,  10  Or.  410;  Snom  v. 
Wnh,  75  Me.  1<»5;  State  v.  Cadi/,  SO  Mo.  413.  The  action  of 
the  court  in  refusing  to  cite  the  newspaper  editors  for  contempt 
of  court  during  the  trial  was  ])roi)er.  It  was  in  the  discretion 
of  the  court,  and  its  action  was  not  a  proper  8ui)jet.  of  excep- 
tion. 4  Ency.  of  PI.  &  Pr.  70<5,  7G7,  774;  3  Am.  ^'y.x\^  Ijicy.  of 
Law,  780;  Thompson  on  Trials,  Sec.  124.  It  is  manifest  that 
the  jury  was  not  influenced  by  the  newspai^er  publications, 
and  therefore  the  defendant  was  not  injured  by  the  refusal  of 
tlie  court  to  issue  the  citation  for  conieuipt.  People  v.  Golden- 
son,  76  Cal.  328,  353;  People  v.  Murt'oy,  85  Cal.  350,  361; 
People  V.  Murray,  94  Cal.  212;  28  Am.  St.  Uep.  113.  The  ques- 
tion asked  Dr.  Barrett  as  to  what  was  the  means  used  for  the 
stran<?ulation  was  competent,  us  u  ])roper  foundation  had  been 
laid  to  ask  this  (juestion  of  the  doctor  as  an  expert.  Whar- 
ton's Criminal  Evidence,  9th  Ed.,  Sec.  412. 

Doctor  Barrett's  answer  that  he  thought  the  means  used 
were  hands,  was  proper  and  responsive  to  the  question. 
People  V.  Parker,  60  Mich.  277;  1  Am.  St.  Rep.  501.  The 
question  asked  Mrs.  Vogel  as  to  whether  or  not  she  knew  in 
whose  name  the  title  to  the  property  stood  was  irrelevant,  and 
properly  ruled  out.  Depuij  v.  Williams,  36  Cal.  310,  316; 
JIardall  v.  Hancock,  80  Cal.  82-4;  Taylor  v.  Kelly,  103  Cal. 
178,180;  Ilavem  v.  Donahue,  HI  Cal.  297,301.  The  court 
did  not  err  in  instructing  Mrs.  Vogel  not  to  answer  the  ques- 
tion asked  her.  Thompson  on  Trials,  Sec.  352;  Rice's  Crim- 
inal Evidence,  334,  335;  1  Bishop's  New  Criminal  Procedure, 
Sec.  966. 

The  statement  of  counsel  for  the  defendant  to  Mrs.  Crossett, 
that  she  imagined  she  had  seen  the  defendant,  was  improper, 
and  the  judge  properly  rebuked  the  counsel  therefor.  Rice  on 
Criminal  Evidence,  334,  335;  Thompson  on  Trials,  Sec.  354. 
The  photograph  of  the  deceased  was  shown  to  be  a  fair  repre- 
sentation of  her  at  the  time  of  her  death,  and  was  therefore 
properly  admitted.  Rice's  Criminal  Evidence,  154;  Whar- 
ton's Criminal  Evidence,  9th  Ed.,  Sec.  54  f;  Thompson  on  Trials, 
§  809;  Udderzooh  v.  Commonwealth,  76  Pa.  St.  340;  1  Bish- 
op's New  Criminal  Procedure,  §  1097;  People  v.  Fisher,  supra. 
The  action  of  the  district  attorney  in  reading  from  the  tran 


±<l 


508 


AMERICAN  CRIMINAL  REPORTS. 


script  of  Mr.  King's  testimony  at  the  preliminary  examination 
and  asking  him  if  he  had  so  testified,  was  j)roper  for  tiie  pur- 
pose of  refreshing  his  memory.  Code  Civ.  Proc.  §  2047; 
Paige  v.  Carter,  iU  Cal.  489,  490;  Beid  v.  Held,  73  Cal.  206, 
209;  Burney  v.  Ball,  24  Ga.  505;  Huhhy  v.  State,  8  Tex.  Cr.  App. 
597,  607;  White  v.  State,  18  Tex.  App.  57;  Slsk  v.  State,  28  Tex. 
App.  432;  State  v.  Miller,  53  Iowa,  154, 155;  Hull  v.  Alexander, 
26  Iowa,  569;  BeauUen  v.  Cicotte,  12  Mich.  459,  468. 

The  question  asked  Dr.  Farnum  as  to  the  purpose  for  which 
wooden  blocks  were  used  in  the  medical  college  in  connection 
with  dead  bodies,  was  not  a  subject  to  general  objection. 
Brumley  v.  Flint,  87  Cal.  473;  Crocker  v.  Carpenter,  98  Cal.  41S, 
421;  Colton,  etc.,  Co.  v.  Swartz,  99  Cal.  278.  The  hypothetical 
question  asked  Dr.  Farnum  was  based  on  a  state  of  facts  rea- 
sonably inferred  from  the  evidence,  and  was  therefore  proiter, 
as  it  is  not  necessary  that  the  facts  be  proven,  any  state  of 
facts  which  it  may  be  claimed  the  evidence  justifies  may  be 
assumed.  Thompson  on  Trials,  §§  604, 6U6,  608-10;  Uarnett  v. 
Garvey,  66  N.  Y.  641;  Lovclady  v.  State,  14  Tex.  App.  545,  5f)0; 
Guiterman  v.  Liverpool,  etc.,S.  S.  Co.,  83  X.  Y.  358;  Crotvhy  v. 
People,  83  N.  Y.  4(54,  470;  38  Am.  Pwep.,  464;  Filer  v.  Xcw 
York,  etc.,  E.  li.  Co.,  49  N.  Y.  47;  10  Am.  Rep.,  327;  People  i\ 
Goldenson,  supra,'  Wintringham,  v.  Hayes,  144  X.  Y.  1;  ^Z 
Am.  St.  Rep.  725;  Yardley  v.  Cathhertmn,  108  Pa.  St.  ::;>.5; 
56  Am.  Rep.  218;  Qninn  o.  Higglns,  63  Wis.  664;  53  Am.  Kop. 
305;  Meeker  v.  Meeker,  74  Iowa,  352;  7  Am.  St.  Rej).  4S9. 

The  action  of  the  court  in  permitting  officer  Reynolds  to  fit 
the  chisel  in  the  mark  on  the  jamb  of  the  door  was  ])i'(>pcr. 
Commonwealth  v.  Sturtlvant,  117  Mass.  122;  19  Am.  Rep.  101. 
Miss  Cunningham's  evidence  was  a  clear  and  direct  contradic- 
tion of  the  defendant,  and  clearly  admissible.  Code  Civ.  Pioc. 
§  2051;  Rice's  Criminal  Evidence,  307.  The  use  of  the  box  I)y 
the  district  attorney  was  not  error.  Thompson  on  Trials, 
§  992. 

IIrnshaw,  J.  The  defendant,  convicted  of  the  murder  of 
Blanche  Lamont,  prosecutes  these  appeals  from  the  judgment, 
and  from  the  order  denying  him  a  new  trial. 

Reviewing  the  specifications  of  error  in  their  natural 
ssquence,  rather  than  in  the  order  of  their  presentation  in 
argument,  the  first    which  invite  attention  are  defendant's 


PEOPLE  V.  DURRANT. 


509 


cliallenj^es  to  the  panel.  He  contended  that  the  list  of  trial 
jurbrs  had  not  been  selected  or  returned  as  required  by  sec- 
tions 201  to  209  of  the  Code  of  Civil  Procedure.  In  support 
of  this  contention,  he  offered  the  record  of  the  proceedings  of 
the  judges  of  the  Superior  Court  in  the  matter.  This 
record,  kept  by  the  secretary  of  the  judges,  was  incomplete. 
Under  direction  of  the  presiding  judge,  the  secretary  amended 
his  record,  and,  as  amended,  his  minutes  showed  a  compliance 
with  the  law.  The  presiding  judge  was  permitted  to  testify 
to  the  facts  attending  the  selecting  and  listing  of  the  trial 
jurors,  from  which  it  appeared  that  the  proceedings  of  the 
judges  were  due  and  regular.  Defendant's  objection  that  the 
original  minutes  of  the  secretary  were  the  sole  evidence 
admissible  upon  the  question  can  not  be  sustained.  It  was  the 
inherent  right  of  the  court  to  correct  its  records  to  make  them 
comport  with  verity.  Kaufman  v.  Shain,  111  Cal.  10,  43  Pac. 
393.  The  secretary's  minutes  are  not  made  exclusive  evidence 
of  the  proceedings  they  undertake  to  record.  It  was  the 
duty  of  the  trial  judge  to  determine  the  facts,  and  no  better 
evidence  could  have  been  offered  than  that  of  the  presiding 
judge,  himself  ar.  actor  in  and  creator  of  them. 

The  further  obj'^ction  that  the  judges  failed  to  comply  with 
the  law,  in  that,  of  the  jurors  selected,  some  did  not  possess 
the  requisite  qualifications,  is  equally  untenable  as  a  ground  of 
challenge  to  the  panel.  People  v.  Youtuj,  lOS  Cal.  12;  41  Pac. 
2S1.  To  hold  mandatory  the  provisions  of  section  20o  of  the 
Code  of  Civil  Procedure,  and  thus  to  require  of  the  judges  the 
strictest  compliance  with  the  law  in  the  matter  of  the  selection 
of  jurors,  would  be  to  the  last  degree  unreasonable.  They 
would  then  be  obliged  to  lay  aside  all  other  business,  and 
devote  their  time  for  days,  and  perhaps  weeks,  to  personal 
inquiry,  inspection  and  examination  of  3,600  men  (the  number 
of  jurors  called  for),  and,  after  this  labor,  to  decide,  at  the 
peril  of  a  rejection  of  the  whole  panel,  that  to  the  llnal  name 
upon  the  list  each  man  possessed  all  the  qualifications  of  a 
juror.  The  provisions  of  the  section  are  directory,  and  a  sub- 
stantial comi)liance  with  them  is  here  shown,  and  is  all  that 
may  be  demanded. 

Section  20-i  of  the  Code  of  Civil  Procedure  provides  that  in 
counties,  and  cities  and  counties,  of  more  than  100,0(iO  inhab- 
itants, the  judges  of  the  superior  court  shall  select  and  return 


M  .-'Mi  n  '■  ; 


'''.i  '  !■'&].'■ 


•ml 


510 


AMERICAN  CRIMINAL  REPORTS. 


trial  jurors.  Though  the  section  was  amended  in  1881,  and 
again  in  1803,  the  provisions  rehitive  to  cities  and  counties  of 
over  100,000  inhabitants  continued  unchanged  so  far  as  alf'ccts 
this  consideration.  Before  the  present  constitution  went  into 
operation,  the  jurors  were  selected  by  the  difstnct  judges  of  the 
several  judicial  districts  within  the  city  and  county  of  San 
Francisco,  the  county  judge,  the  probate  judge  and  the  judge 
of  the  municipal  criminal  court.  The  amendments  to  the  sec- 
tion made  after  the  adoption  of  the  present  constitution  were 
designed  to  meet  the  new  judicial  system  provided  for  by  that 
instrument.  This  section  was  a  part  of  the  code  before  the 
adoption  of  the  existing  constitution,  and  by  that  instrument 
(article  22,  §  11),  all  laws  relative  to  the  judicial  system  then 
in  force  were  made  applicable  to  the  new  system  therein 
provided  for.  Section  201:  of  the  Code  of  Civil  Procedure  was 
not  unconstitutional  under  our  earlier  organic  law,  and  did  not 
become  unconstitutional  by  virtue  of  the  present  one.  To  the 
contrary,  the  section  was  expressly  retained  in  force. 

The  court  summoned  jurors  by  special  venire.  To  the 
panel  thus  formed,  defendant  objected.  The  objection  was 
not  based  upon  section  1061  of  the  Penal  Code,  but  upon  the 
ground  that  the  regular  jury  list  had  not  been  exhausted. 
This  is  not  a  ground  for  challenge.  Code  Civ.  Proc.  §§  ^220, 
227;  Zevt/  V.  Wikon,  69  Cal.  Ill,  10  Pac.  272;  People  v.  V!n- 
cent,  95  Cal.  125,  30  Pac,  581.  The  court  may  summon  jurors 
by  special  venire  without  exhausting  all  of  the  names  upon 
the  regular  list. 

To  the  jurors  Crocker  and  Nathan  challenges  were  inter- 
posed for  actual  bins,  under  subdivision  2  of  section  1073  of 
the  Penal  Code,  The  challenges  were  disallowed.  AVhether 
or  not  the  jurors  Crocker  and  Nathan,  or  either  of  them, 
were  shown  to  be  disqualified  b\'  actual  bias  against  the  de- 
fendant, and  therefore,  whether  or  not  the  trial  court 
erred  in  disallowing  the  challenges  interposed  to  them,  is  not, 
under  the  facts  presented  b}'  the  record,  a  subject  for  consid- 
eration by  this  court.  The  challenges  for  cause  having  been 
disallowed,  the  defendant  did  not  see  fit  to  exercise  his  right 
of  peremptory  challenge  upon  either  of  the  jurors,  but  ac- 
cepted them  both.  When  the  jury  was  completed,  defendant 
still  had  in  reserve,  and  unemployed,  eight  of  his  twenty  per- 
emptory challenges.    It  has  in  this  state  been  held  in  numerous 


PEOPLE  V.  DURRANT. 


61L 


instances  that  if  the  judge  errs  in  disallowing  a  challenge  for 
cause,  and  the  defendant  thereafter  excuses  the  obnoxious 
juror  under  a  peremptory  challenge,  and  the  jury  is  com- 
pleted without  the  exhaustion  by  the  defense  of  all  of  its  per- 
emptory challenges,  the  error  of  the  court  will  not  be  re- 
viewed upon  appeal,  because  no  injury  could  have  resulted  to 
the  defendant.  People  v.  Gatewood,  20  Cal.  146;  People  v. 
Gmmt,  23  Cal.  156;  People  v.  Weil,  40  Cal.  268;  People  v. 
McGimgill,  41  Cal.  429.  The  situation  here  differs  somewhat 
from  that  presented  by  the  cases  last  above  cited.  Eut  the 
reasoning  which  governed  those  decisions  is  strictly  appli- 
cable to  present  consideration.  The  defendant  may  not  have 
reviewed  an  error  which  he  has  invited  or  has  failed  to  avoid 
by  the  legal  means  at  his  command.  If  the  defendant  feared 
to  put  himself  upon  trial  before  the  jurors  whom  he  had  chal- 
lenged, it  was  his  duty  to  have  availed  himself  of  the  liberal  aid 
which  the  law  affords,  and  to  have  excused  them  from  the 
box.  If,  in  so  doing,  he  lessened  the  number  of  his  peremp- 
tory challenges  to  such  an  extent  that  it  appears  they  were 
exhausted  before  the  completion  of  the  jury,  he  may  well  be 
heard  to  urge  in  argument  that  by  reason  of  the  erroneous 
ruling,  the  number  of  his  peremptory  challenges  was  improp- 
erly curtailed,  and  he  was  deprived  of  a  legal  right;  but  if  it 
is  shown,  as  here,  that  the  two  jurors  in  question  were 
.accepted  and  allowed  to  remain,  when  the  defense  could  have 
exercised  peremptory  challenges  upon  them,  and,  further, 
that,  at  the  time  when  the  jury  was  completed,  there  was 
still  held  in  reserve  by  the  defense  nearly  half  of  its  peremp- 
tory challenges — if,  under  these  circumstances,  error  Avas  com- 
mitted by  the  trial  court,  it  was  either  permitted  by  the 
defense,  or  acquiesced  in  by  its  failure  to  exercise  its  legal 
right,  and  the  ruling  will  not  be  reviewed.  There  Avill  be 
found  in  the  cases  some  slight  diversity'  of  opinion  upon  the 
question,  but  the  great  weight  of  authority  is  in  support  of 
the  view  above  expressed.  Thompson  on  Trials  (section  120) 
thus  declares  the  principle:  "It  is  a  rule  of  paramount 
importance  that  errors  committed  in  overruling  challenges  for 
cause  are  not  grounds  of  reversal,  unless  it  be  shown  an 
objectionable  juror  was  forced  upon  the  challenging  party 
after  he  had  exhausted  his  peremptory  challenges.  If  his 
peremptory  challenges  remain  unexhausted,  so  that  he  might 


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its'! 


512 


AMERICAN  CRIMINAL  REPORTS. 


liave  excliuled  the  objectionable  juror  by  that  means,  he  hag 
no  gi'ound  of  complaint."  The  rule  above  stated  finds  over- 
whelming support  from  the  authorities,  of  which  a  few  may 
bo  cited:  State  v.  Gooch,  94  N.  C.  987;  WilUnms  v.  State,  30 
Tex.  App.  35-1:,  17  S.  W.  408;  State  v.  Le  Duff,  46  La.  Ann. 
540,  15  South.  397;  State  v.  Yetzer  (Iowa),  CO  N.  W.  737; 
State  0.  Hartley  (Nev.),  40  Pac.  372;  People  v.  Ajdin,  86 
Mich.  393,  49  N.  W.  148;  Bmmhach  v.  Bank,  40  Neb.  540,  65 
N.  W.  198;  Prewitt  v.  Lambert,  19  Colo.  7,  34  Pac.  684;  Spies 
V.  People,  122  111.  1,  12  K  E.  865,  and  17  N.  E.  191. 

Nine  jurors  had  been  sworn  to  try  the  case.  At  this  stajije 
of  the  proceedings  the  district  attorney  sought  and  obtained 
permission  of  the  court  to  reopen  the  examination  of  one  of 
these  (Brown),  and  to  question  him  upon  matters  which 
had  come  to  his  knowledge  since  his  acceptance  as  a  juror. 
Permission  was  granted  over  objection  and  exception  of 
defendant.  At  the  conclusion  of  the  examination,  the  dis- 
trict attorney  asked  leave  to  interpose  a  perem])tory  challenge 
to  the  juror.  Leave  was  given,  and  this  ruling  was  assigned 
as  error.  Section  1068  of  the  Penal  Code  provides  that  a 
challenge  (either  peremptory  or  for  cause)  must  be  taken 
when  the  juror  appears,  and  before  he  is  sworn  to  try  the 
cause;  but  the  court  may,  for  cause,  permit  it  to  be  taken 
after  the  juror  is  sworn,  and  before  the  jury  is  completed.  It 
was  not  error,  therefore,  for  the  court  to  permit  a  re-examina- 
tion of  the  juror  upon  matters  coming  to  the  knowledge  of  the 
people  or  defendant  after  his  acceptance,  and  before  the  com- 
pletion of  the  i\xry.  The  course  here  pursued  was  that 
followed  in  People  v.  Beminerhj,  87  Cal.  117,  25  Pac.  206,  and 
approved  by  this  court. 

The  new  matter  upon  which  the  juror  Brown  was  questioned 
touched  his  connection  with  the  case  of  one  Howell,  who  liad 
been  tried  in  a  federal  court  for  passing  counterfeit  money. 
Brown  had  been  a  juror  in  the  case,  and,  with  others,  had 
voted  for  Howell's  acquittal.  The  result  was  a  disagreement 
of  the  jury,  and  a  mistrial.  Rumors  that  the  Howell  jury  had 
been  approached  and  corrupted  were  current,  and  the  next 
federal  grand  jury  instituted  an  investigation.  Brown  was 
summoned  before  it,  and  interrogated  as  to  his  knowledge  of  the 
matter;  but,  in  justice,  it  should  be  added  that  the  record  before 
us  does  not  disclose  that  his  own  integrity  was  under  assault. 


PEOPLE  r.  DURRANT. 


513 


There  was  undoubtedly  not  enough  in  this  to  warrant  the  inter- 
position of  a  challenge  for  cause;  but  section  1068  of  the  Penal 
Code  contemplates  also  the  taking  of  a  peremptory  challenge, 
as  was  done  in  this  case.  When  the  code  says  that  the  court 
may,  for  cause,  permit  the  challenge  to  be  taken,  it  means,  as 
the  language  has  been  interpreted,  that  it  is  not  a  matter  of 
right  to  either  party,  but  may  be  permitted  in  the  exercise  of 
a  sound  discretion  {People  n.  Reynolds^  16  Cal.  128;  People  v. 
MoHtfjomery^  53  Cal.  576;  People  v.  Bemmerly,  87  Cal.  117,  25 
Pac.  266);  and,  as  said  in  People  v.  Montgomery,  in  granting 
or  refusing  permission  it  will  not  be  presumed  that  the  court 
has  abused  its  discretion.  In  all  matters  not  ordered  by  inflex- 
ible rule,  no  set  formula  applicable  to  every  case  may  be  laid 
down  to  govern  and  measure  the  exercise  of  discretionary 
power.  As  each  case  arises,  its  determination  must  rest  upon 
its  peculiar  facts,  and  what  might  be  an  abuse  under  one  set 
of  circumstances  might  bo  a  fair  exercise  under  another.  In 
every  case  careful  regard  will  be  had  to  see  whether  or  not  the 
substantial  rights  of  a  defendant  have  been  jeoparded  or 
impaired,  but,  if  they  have  not,  then  the  ruling  is  not  to  be 
disturbed,  for,  at  the  worst,  it  could  be  but  a  technical  error, 
which  the  courts  are  commanded  to  disregard.  Penal  Code, 
§  1404.  Having  in  view  the  nature  of  the  district  attorney's 
inquir}^  and  his  manifest  suspicion  that  the  juror  was  or  had 
been  approachable  and  venal,  it  might  well  be  that,  as  a  result 
of  the  inquiry,  the  juror  was  left  in  a  state  of  extreme  hostility 
to  the  prosecuting  officer.  He,  upon  his  part,  had  failed  to 
establish  ground  for  a  challenge  for  cause,  and,  if  he  could 
not  exercise  a  peremptory  challenge,  would  be  compelled  to 
try  and  to  argue  his  case  before  a  juror  whose  attitude 
naturally  was  one  of  bitter  antagonism  to  him.  It  may  safely 
be  said  that,  however  disinterested  a  juror  might  be  as  between 
the  litigants,  no  advocate  cherishing  his  client's  interests  would 
willingly  accept  one  whom  he  believed  to  be  his  personal 
enemy.  These  obvious  considerations  wore  in  the  mind  of  the 
trial  judge.  Moreover,  the  defendant  had  not  exhausted  his 
peremptory  challenges.  Four  other  jurors  were  obtained,  to 
none  of  whom  was  any  challenge  taken  by  the  defense;  and, 
as  has  been  said,  when  the  jury  was  finally  completed  there 
remained  to  the  defense,  unexercised,  eight  of  its  twenty  per- 
emptory challenges.  The  ruling  by  which  the  prosecution  was 
8a 


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■i 


I 


514 


AMERICAN  CRIMINAL  REPORTS. 


allowed  to  interpose  the  peremptory  challenge  worked  no 
hardship  to  the  defendant.  His  right  was  to  a  fair  and  impar- 
tial jury,  not  to  a  jury  composed  of  any  particular  individuals. 
When  it  appears  that  a  fair  and  impartial  jury  was  obtained, 
it  is  the  general  rule  that  an  error  of  the  court  in  allowing  a 
challenge,  and  permitting  a  juror  to  be  excused,  is  not  subject 
to  review.  Territory/  v.  Roberts,  9  Mont.  12,  22  Pac.  132; 
State  V.  Klauseman,  53  Minn.  541, 55  N.  W.  741;  State  v.  Chin 
Liny,  16  Or.  419,  18  Pac.  844;  Snow  v.  Weels,  75  Me.  105; 
Tompson  v.  Douglass,  35  W.  Va.  337,  13  S.  E.  1015;  John  D. 
a  V.  State,  16  Fla.  554;  State  v.  Ward,  39  Vt.  225;  Wat,wn  v. 
State,  63  Ind.  548;  Tatnm  v.  Yoiuig,  1  Port.  (Ala.)  298;  Rich- 
ards V.  State,  36  Nebraska,  17.  It  can  not  be  said,  uiuler  the 
circumstances  shown,  that  any  injury  resulted  to  defendant 
from  the  ruling,  or  that  an}'  abuse  of  discretion  is  shown. 
People  V.  Arceo,  32  Cal.  40;  People  v.  Murray,  85  Cal.  350, 24 
Pac.  666;  People  v.  Murphy,  45  Cal.  137. 

The  contention  of  appellant  next  to  be  considered  is  tliat  the 
evidence  is  insufficient  to  justify  the  verdict,  and  that  the  ver- 
dict is  contrary  to  the  evidence,  in  this:  that  the  evidence  fails 
to  show  how,  when  or  where  Elanche  Lamont  was  murdered, 
or  that  the  defendant  in  any  way  was  instrumental  in  causing 
her  death.  No  small  part  of  appellant's  argument  herein  is 
devoted  to  an  attack  upon  the  credibility  of  the  witnesses  for 
the  prosecution.  In  this  attack  the  personal  characters  of 
many  are  assailed,  and  the  unreliability  of  the  evidence  of 
nearly  all  is  insisted  upon.  It  here  again  becomes  necessary 
to  repeat  that  arguments  touching  the  credibility  of  witnesses 
and  the  weight  to  be  given  their  testimony— arguments  emi- 
nently proper  to  be  addressed  to  the  jury  or  to  the  judge  upon 
motion  for  a  new  trial — are  not  for  our  consideration.  This 
court  sits  in  criminal  cases  solely  for  the  correction  of  errors 
at  law.  If,  in  any  criminal  case,  there  be  evidence  adduced 
logically  tending  and  legally  sufficient  to  prove  the  guilt  of  a 
defendant,  this  court  can  not  and  will  not  disturb  the  jury's 
determination,  even  under  a  claim  that  there  is  conflicting  evi- 
dence which  might  have  raised  a  reasonable  doubt  of  his  guilt. 
The  province  of  the  ju-y  in  weighing  evidence,  and  determin- 
ing the  degree  of  credibility  to  be  accorded  the  testimony  of  wit- 
nesses, is,  under  the  rules  of  law,  exclusive.  A  judge  may  not 
instruct  upon  matters  of  fact.    If  a  witness  should  absolutely 


PEOPLE  V.  DURRANT. 


515 


discredit  his  own  testimony  by  swearing  to  opposite  statements, 
so  that  one  or  the  other  must  be  false,  under  our  laws  his  testi- 
mony is  not  of  necessity  to  be  rejected.  It  is  still  evidence  in  the 
case.  Under  such  circumstances,  the  jury  must  receive  and 
weigh  it.  They  are  bound  to  look  upon  it  with  suspicion  and 
distrust,  and  may  reject  it.  But,  upon  the  other  hand,  they 
may,  as  they  determine,  accept  as  true  one  or  the  other  of 
the  contradictory  asseverations.  Thus,  upon  a  review  of  the 
evidence  by  this  tribunal,  we  may  not  examine  with  minute- 
ness claims  that  witnesses  are  discredited,  or  that  their  evi- 
dence is  unworthy  of  belief,  or  look  to  see  whether  some  other 
conclusion  might  not  have  been  warranted  by  the  evidence. 
Bli/the  V.  Ai/n'S,  102  Cal.  254;  36  Pac.  522.  "  Ad  questionem 
juris  respondi'antjtidlees,  ad  questionem  facti  respondeant  j ura- 
toresf^  and  than  this  no  maxim  of  the  old  law  has  been  more 
carefully  preserved  in  its  integrity  under  our  system.  Where 
it  is  not  clear  that  the  verdict  must  have  been  rendered  under 
the  influence  of  passion  or  prejudice,  our  examination  of  the 
record  is  only  to  determine  whether  legal  evidence  has  been 
offered  sufficient  to  warrant  a  conviction,  for  the  verdict  of 
the  jury  is  their  declaration  that  it  is  this  evidence  which  has 
been  by  them  accepted.  People  v.  Ah  Loy,  10  Cal.  301;  Peo- 
ple V.  Vance,  21  Cal.  400;  People  v.  Strong,  30  Cal.  151;  Pto- 
ple  V.  Dich,  32  Cal.  214;  People  v.  Jfanni7i(/,  48  Cal.  335; 
People  V.  Estrada,  53  Cal.  600;  People  v.  Mayes,  %^  Cal.  597; 
6  Pac.  691;  People  v.  Ah  Jake,  91  Cal.  98;  27  Pac.  595;  Peojjle 
V.  Freeman,  92  Cal.  359;  28  Pac.  261. 
The  following  facts  were  presented  in  evidence : 
Upon  April  3,  1895,  Blanche  Lamont  was  living  with  her 
aunt,  Mrs.  Noble,  in  the  city  and  county  of  San  Francisco. 
She  was  in  person  rather  tall  and  slight,  and  weighed  about 
120  pounds.  Her  age  was  twent3'-one  years.  She  was  a  school 
girl,  attending  the  high  school  and  normal  school,  and  upon  the 
morning  of  April  3d,  left  her  home,  with  her  strap  of  books, 
to  join  her  classes.  She  met  defendant  while  on  the  way  (such 
is  his  testimony),  and  he  accompanied  her  for  a  part  of  the 
journey.  She  was  at  school  during  the  day's  session,  and  at 
its  close,  about  3  p.  m.,  left  with  the  other  pupils.  She  did 
not  return  home,  and  never  after  that  day  was  seen  alive. 
Shortly  after  9  o'clock  upon  the  morning  of  April  14th,  two 
police  officers  and  the  janitor  attempted  to  open  the  door 


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516 


AMERICAN  CRIMINAL  REPORTS. 


leading  to  the  belfry  of  the  Emmanuel  Baptist  Church.  Thcv 
,  were  prosecuting  a  search  for  Blanche  Lament.  Tlie  knob  of 
the  door  was  gone,  and  the  lock  mutilated,  so  that  the  janitor's 
ke}'^  could  not  open  it.  They  forced  tlie  door,  and  one  of  the 
officers,  ascending  the  stairs,  found  the  body  of  a  girl  lying  on 
the  top  landing,  in  the  southeastern  corner  of  the  belfry.  It 
was  that  of  Blanche  Lamont.  Tiie  bod\'  was  naked,  lyinn; 
upon  its  back,  the  feet  close  together,  the  hands  folded  upon 
the  breast,  the  head  inclined  a  little  to  the  left.  There  were 
two  small  blocks,  apparently  employed  to  hold  the  head  in  an 
upright  position.  Decomposition  was  well  advanced,  and,  by 
medical  testimony,  life  had  been  extinct  for  about  two  weeks. 
An  examination  and  autopsy  of  the  corpse  revealed  seven  lin- 
ger nail  incisions  upon  the  left  side  of  the  throat,  and  five  upon 
the  right,  a  depression  of  the  larynx,  and  a  congestion  of  the 
trachea,  larynx,  lungs,  and  brain.  Strangulation  was  the 
cause  of  death.  A  search  brought  to  light  the  clothing  and 
apparel  of  the  girl,  hidden  in  and  about  the  rough  Avoodwork 
of  the  belfry,  and  also  her  book,  strap  and  school  books. 

Upon  April  15th  the  defendant  was  arrested,  and  charged 
with  this  murder.  At  that  time,  Durrant  was  a  young  man, 
twenty-four  years  of  age,  a  student  of  the  Cooper  Medical  Col- 
lege of  San  Francisco,  and  a  member  of  the  signal  corps  of  the 
National  Guard  of  the  State.  He  was  interested  in  religious 
work;  was  an  attendant,  if  not  a  member,  of  the  Emmanuel 
Baptist  Church;  was  a  member  of  the  Christian  Endeavor  So- 
ciety; was  assistant  superintendent  of  the  Sunday  school,  and 
was  librarian  of  the  church  library.  As  is  abundantly  testi- 
fied to,  he  bore  the  esteem  of  his  fellows  as  a  zealous,  earnest, 
and  upright  young  man,  of  commendable  character,  and  of 
sincere  Christian  life.  When  arrested,  he  was  u|)on  service  of 
the  signal  corps  to  which  he  was  attached.  Upon  the  trial 
his  defense  was  an  alibi.  He  declared  that  he  ha''  eeen  Blanche 
Lamont  in  the  morning  of  April  3d,  when  she  was  on  her  way 
to  school,  but  never  again  thereafter;  that  he  himself  had  gone 
to  his  medical  college,  and  there  had  attended  a  lecture  at  the 
time  when,  under  the  contention  of  the  prosecution,  the  girl 
had  been  bvhim  murdered  in  the  church.  Bv  the  prosecution 
it  was  shown  that  Blanche  Lamont  was  a  regular  attendant  of 
Emmanuel  Church,  and  belonged  to  the  Society  of  Christian 
Endeavor,  of  which  Durrant  was  also  a  member.    The  two 


PEOPLE  V.  DURRANT. 


517 


were  well  acquainted.  Indeed,  they  seem  to  have  stood  in 
their  intercourse  upon  terms  of  cordial  and  trusting  friendshii). 
They  met  at  religious  and  social  gatherings,  to  or  from  which 
Durrant  fre(]uently  escorted  the  girl,  in  company  with  l:er 
sister  and  others  of  their  social  circle.  Durrant  had  a  key  to 
the  side  door  of  the  church,  was  thoroughh'  familiar  with  tho 
building  and  premises,  and  frequently  visited  them. 

Mrs.  Mary  Vogel  lived  across  the  street  from  the  school 
which  Blanche  Lamont  was  attending.  She  saw  defend- 
ant a  little  after  2  o'clock  of  the  afternoon  of  April  3d 
m  front  of  the  schoolhouse,  walking  up  and  down,  ai)j)ar- 
ently  in  waiting.  When  school  closed,  slie  noticed  two  girls 
coming  out  together.  One  of  them  carried  books  in  a  strap. 
Tliey  walked  to  the  corner  of  tho  street,  where  they  sto]iped 
for  a  car.  The  defendant  joined  them  as  they  were  a'jout 
to  board  it.  One  of  the  girls  went  inside.  The  other 
sat  outside  upon  the  dummy.  The  defendant  joined  this  girl, 
and  seated  himself  beside  her.  Minnie  Edwards  testified  that  it 
was  she  who  accompanied  Blanche  Lamont  from  school  that 
.afternoon.  They  were  joined  by  Durrant  at  the  corner. 
Blanche  Lamont  and  he  sat  together  outside,  while  she  found 
a  seat  within  the  car.  Blanche  Lamont  had  her  school  books 
with  her.  Mrs.  Alice  Dorgan,  at  the  time  of  these  occur- 
rences, was  a  pupil  of  the  same  school.  Upon  that  afternoon, 
she,  too,  saw  Blanche  Lamont  upon  the  dummy  in  company 
with  the  defendant.  ]\Iay  Lanigan,  another  of  the  school  girls, 
also  saw  the  two  upon  the  dummy.  This  was  from  five  to 
ten  minutes  after  3  o'clock.  Mrs.  Elizabeth  Crossett  had 
known  the  defendant  for  about  four  years.  Between  half 
past  3  and  4  o'clock  of  this  afternoon,  while  she  was  upon 
a  Valencia  street  car,  traveling  towards  Twenty-fifth  street, 
she  saw  defendant.  He  was  seated  upon  the  dummy  of  her 
car,  in  company  with  a  young  lady  whom  she  did  not  know, 
but  whose  description  answered  to  that  of  the  murdered 
girl.  The  two  were  in  conversation,  and  left  the  car  at 
Twenty-first  or  Twenty-second  street,  and  walked  in  the 
direction  of  Bartlett  street.  The  Emmanuel  Baptist  Church 
is  situated  upon  Bartlett  street,  between  Twenty-second  and 
Twenty-thinl  streets.  Martin  Quinlan,  between  ten  and 
twenty  minutes  after  4  o'clock  of  this  afternoon,  saw  the 
defendant  and  a  young  lady,  whose  description  corresponded 
to  that  of  the  girl,  and  who  carried  a  loose  package  in  her 


618 


AMERICAN  CRIMINAL   REPORTS. 


V'i' 


hand  by  a  string  or  strap,  walking  along  Bartlett  street, 
from  Twenty-socond  street  towards  Twenty-third  street. 
They  were  upon  the  same  side  of  the  street  as  the  church, 
and  were  walking  towards  it.  Mrs.  Caroline  Leake  lived 
upon  Bartlett  street,  almost  directly  opposite  the  ciiurch.  She 
had  been  an  attendant  there  al  divine  service  for  many  years. 
She  had  known  defendant  for  the  past  three  or  four  years. 
She  also  knew  Blanche  Lamont.  Between  4  and  half  past  4 
of  this  afternoon,  she  saw  Durrant  and  a  young  lady  pass 
through  the  gate  into  the  churciiyard,  and  on  toward  the  side 
door.  His  companion  she  could  not  identify  positively,  but 
from  her  appearance  thought  at  the  time  that  it  was  Blanche 
Lamont,  or  another  young  lady  of  similar  size  and  height. 
This  young  lad}'  testified  that  she  was  not  Avith  defendant  at 
any  time  upon  that  day,  and  no  pretense  is  made  that  she  was. 
George  King  was  a  member  of  the  church,  and  its  organist. 
Ho  knew  defendant,  and  the  two  were  very  friendly.  At  5 
o'clock  on  this  afternoon,  he  entered  the  church  bv  the  front 
door,  letting  himself  in  with  his  key.  lie  noticed  a  strong 
smell  of  gas,  and  went  forthwith  to  the  library,  to  see  if  it 
was  escaping  there.  lie  failed  to  find  the  leak.  Thence,  clos- 
ing the  library  door,  he  proceeded  directly  to  the  Sunday 
school  room,  and,  sitting  at  the  piano,  began  to  play.  He 
played  for  two  or  three  minutes,  when  defendant  came  tli rough 
the  folding  doors  to  the  rear,  and  stood  looking  at  him.  "1 
asked  him  what  was  the  matter,  because  of  his  pale  con<lition. 
He  had  his  coat  off,  and  his  hat  off.  His  hair  was  somewhat 
disheveled.  He  came  through,  and  then  tokl  me  that  ho  had 
been  fixing  the  gas  above  the  auditorium,  and  had  been  over- 
come by  it  to  such  a  degree  that  he  could  hardly  descend  the 
ladder.  He  seemed  ill.  He  handed  me  a  fifty-cent  piece,  and 
asked  me  to  go  and  get  some  bromo  seltzer."  ^Vitness  pro- 
cured the  seltzer,  and  upon  his  return  found  the  defendant 
either  standing  in  the  lobby  or  lying  upon  the  platform  in  the 
Sunday  school  room.  He  thinks,  however,  that  defendant 
"Was  l^'ing  down.  Defendant  took  a  dose  of  the  seltzer,  which 
seemed  to  nauseate  him  somewhat.  The  two  sat  and  talked 
together  for  a  few  minutes;  then  went  up  stairs  to  the  choir 
loft,  and  carried  down  a  small  organ.  Defendant  appeared 
weak,  and  had  to  stop  two  or  three  times  to  rest.  Then  they 
went  to  the  librrry  door,  which  Durrant  unlocked,  and,  enter- 


PEOPLE  V.  DURRANI. 


519 


injj,  pat  on  his  hat  and  coat,  which  were  lying  on  a  box  in  the 
corner.  Witness  liiid  not  seen  the  hat  or  coat  when  he  went 
into  the  library  the  first  time  that  afternoon.  They  then  left 
the  church,  and,  walking  some  distance  together,  separated, 
and  went  to  their  respective  homes.  It  was  then  about  0 
o'clock. 

Upon  the  morning  of  April  13th,  ten  days  after  the  disa])- 
pearance  of  Blanche  Lamont,  and  one  day  before  the  discovery 
of  her  body,  her  aunt,  Mrs.  Noble,  received  through  the  mail, 
a  package  which  contained  all  of  the  rings  worn  by  her  when 
she  left  her  home.  The  rings  were  inclosed  in  a  copy  of  a 
daily  newspaper,  the  Examiner,  and  upon  the  paper  were 
written  the  names  of  George  King  and  Prof.  Schernstein. 
King  was  a  common  fi'iend  of  Durrant  and  IJlanche  Lamont. 
Prof.  Schernstein  was  her  music  teacher.  Neither  of  the  two 
wrote  the  names.  The  |)aper  and  wrapper  were  exhibited  to 
the  jury,  together  with  admitted  exemplars  of  defendant's 
writing.  Upon  a  morning  between  the  4th  and  10th  of  April, 
AdolphOppenheimor,  a  pawnbroker,  was  offered  for  sale  a  gold 
ring  containing  a  diamond  chip.  The  ring  was  identified  as 
one  worn  by  Blanche  Lamont  at  the  time  of  her  disappearance, 
and  subsequently  returned  to  her  aunt  through  the  mail.  The 
person  offering  the  ring  for  sale  was  the  defendant.  William 
PhiUips  testified  that,  upon  a  day  in  the  first  part  of  April,  he 
saw  defendant  standing  in  front  of  Oppenheimer's  place,  be- 
tween 10  and  11  o'clock  in  the  moning.  Dr.  G.  F.  Graham 
was  a  student  and  classmate  of  Durrani's  at  the  Cooper  Medical 
College.  From  3:30  to  4:15  p.  m.  of  April  3d,  Dr.  Cheney,  of 
that  college,  delivered  a  lecture  to  his  class  upon  the  steril- 
ization of  milk.  Dr.  Graham  attended  that  lecture,  and  took 
notes  of  it.  The  defendant,  in  support  of  his  alihi,  claimed  to 
have  attended  the  lecture,  and  likewise  to  have  taken  original 
notes,  which  were  admitted  in  evidence.  Dr.  Graham  testi- 
fied that  after  Durrani's  arrest,  and  before  the  trial,  he  visited 
him  with  a  friend.  Durrant  requested  his  companion  to  with, 
draw,  that  he  might  talk  to  Dr.  Graham  alone.  When  he  had 
done  so,  defendant  informed  Dr.  Graham  that  he  had  no  notes 
of  the  lecture,  and  requested  the  doctor  to  lend  him  his,  saying 
that,  if  he  could  get  them,  he  could  establish  an  alibi.  Defend- 
ant told  him  that  he  could  take  the  notes  to  Durrant's  house, 
get  his  book,  and  put  them  in  it,  and   the  book  could  be 


wm^ 


% 


-'^i'*' 


>/ .  r 


)20 


AMEUICAN  CRIMINAL  REPORTS. 


brought  to  him  in  jail,  or  that  tho  witness  could  commit  his 
notes  to  memor}',  come  to  tho  jail,  an»l  repeat  them  to  iiim. 

This  summarization  of  tlio  ovideneo  is  not  designed  to  be 
exhaustive,  ^[uch  tiiat  is  cumulative  upon  the  |)ai't  «»('  tlio 
people  is  omitted.  No  aiialysis  is  made  of  the  (t/ifn  of  tlie 
defense,  nor  of  tho  claim  of  tho  prosecution  tiuit,  when  not 
completely  demolished,  it  stands  upon  the  unsupported  word 
of  tho  defendant.  Enougii  has  been  set  forth  to  show  that 
tho  verdict  and  judgment  find  support  from  legal  and  suHieient 
evidence,  and,  wJien  that  point  is  reached,  tho  inquiry  of  this 
court  comes  to  an  end,  saving  in  those  exceptional  cases  (of 
which  this  is  not  one)  whore  the  evidence  against  the  defend- 
ant is  so  slight  as  to  make  clear  tho  inference  that  the  verdict 
must  have  been  rendered  under  tho  influence  of  passion  or 
prejudice.  I\'<ij/le  v.  Vance,  21  Cal.  401);  People  v.  2[an:h}(;, 
48  Cal.  335. 

By  this  evidence,  the  defendant  and  IJJanche  Lamont  (she 
witli  her  strap  of  books)  entered  the  Emmanuel  Church  at  about 
half  past  4  o'clock  in  the  afternoon  of  April  3d.  At  5  o'clock 
defendant  is  seen  tliere,  and  explains  his  distressed  condition 
as  caused  by  the  inhalation  of  gas.  At  0  o'clock  ho  leaves  tiie 
church.  Blanche  Lamont  is  never  again  seen  alive.  Two 
weeks  after,  her  nudo  and  decomposing  body  is  found  in  the 
church.  She  had  been  strangled  and  her  corpse  dragged  to 
the  belfry.  The  clothes  which  she  wore  on  leaviny  hmnn  nro 
secreted  about  the  Hoors  and  rafters,  llei'  boo!  sure  i.-mid 
still  tightly  strap|)ed.     These  facts,  with  ''  is  set  forth, 

arc  sutticient  to  justify  the  hyi)othesis  of  <  ..lant's  guilt,  1 
to  exclude  every  other  reasonable  hypothc  tlian  iliat  of  liis 
guilt.  Such  evidence  is  clearly  sulHcient  to  ^'  irrant  and 
uphold  the  determination  that  the  girl  was  strangled  to  death 
at  the  hands  of  the  defendant  upon  the  afternoon  of  April  3d. 
i^The  evi<lence  of  defendant's  previous  good  character,  so 
fully  estaljlished,  was  a  circumstance  making  strongly  in  his 
favor.  We  are  asked  to  say  that  the  jury  disregarded  it  in 
reaching  their  verdict,  but  this  we  can  not  do.  They  were 
fully  and  fairly  instructed  upon  the  matter,  and  it  must  be 
presumed  that  the  instructions  were  regarded. 

Appellant  further  urges  that  the  f'idence  fails  to  disclose 
any  motive  for  the  crime;  that  proof  of  motive  is  essential  to 
support  a  conviction;  and  that,  therefore,  the  judgment  must 


PEOPLE  V.  nURRANT. 


521 


bo  revorsod.  If  by  this  is  meant  that  proof  of  a  particular 
inotivo  must  l)u  as  clear  and  co<reiit  as  proof  of  the  crime,  the 
))i()|)()sition  finds  no  support  in  either  reason  or  authority. 
To  the  act  of  every  rational  hunuin  being  ])re-oxists  a  motive. 
In  every  criminal  case  proof  of  the  movin<f  cause  is  permissible, 
and  oftentimes  is  probable,  but  it  is  never  essential.  AVhere 
the  ))erpetrution  of  a  crime  has  been  brought  homo  to  a  defend- 
ant, the  motive  for  its  commission  becomes  unimportant.  Evi- 
dence of  motive  is  sometimes  of  assistance  in  removinir  doubt, 
and  completing  proof  which  might  otherwise  be  unsatisfactory; 
and  that  motive  may  either  be  shown  by  positive  evidence,  or 
gleaned  from  the  facts  and  surroundings  of  the  act.  The 
motive  then  becomes  a  circumstance,  but  nothing  more  than 
a  circumstance,  to  be  considered  by  the  jiir\';  and  its  absence 
is  equally  a  circumstance  in  favor  of  the  accused,  to  bo  given 
such  weight  as  it  deems  proper.  IJut  proof  of  motive  is  never 
indis))ensable  to  a  conviction.  People  v.  Bennett,  49  N.  Y. 
137;  Pointer  v.  U.  S.,  151  U.  S.  390;  14  Sup.  Ct.  410;  Johnson 
V.  U.  iS.,  157  U.  S.  320;  15  Sup.  Ct.  G14;  C/!ftoii  v.  State,  73 
Ala.  473;  Sumner  v.  State,  6  Blackf.  579.  The  wellsi)rings  of 
human  conduct  are  infinite,  and  infinitely  obscure.  An  act 
may  owe  its  performance  to  complex  and  multitudinous 
promptings.     Who 

Knows  enoh  clioril  its  various  tone, 
Each  spring  its  various  biiis? 

Or  the  deed  may  be  duo  to  a  single  dominant  impulse.  In 
this  case,  what  the  motive  may  have  been  it  is  not  the  province 
of  this  court  to  inquire. 

During  the.impanelment  of  the  jury,  the  defense  made 
application  for  citations  against  certain  newsjmper  editors,  to 
show  cause  why  they  should  not  be  punished  for  contempt 
because  of  their  publications  relative  to  the  trial.  The  court 
refused  to  interrupt  the  proceedings  to  consider  the  matter 
then,  and  postponed  action,  stating  that  at  a  proper  time  it 
would,  upon  request,  take  such  steps  as  might  be  contem- 
plated by  law.  Again,  during  the  impanelment  of  the  jury, 
the  application  was  renewed,  and  the  court's  response  was  the 
same.  No  further  request  was  made,  and  there  flie  matter  was 
allowed  to  stand.  This  is  urged  as  reversible  error.  While  a 
contempt  proceeding,  for  convenience,  is  presented  in  the 
cause  out  of  which  it  grows,  it  is  a  separate  and  distinct  mat- 


'« 


1  ;■   I  -i     • 


522 


AMERICAN  CRIMINAL  REPORTS. 


i-,  i 


ter,  and  no  part  of  the  original  cuse.  ^x  parte  Ah  2[en^  77 
Cal.  198;  19  Pac.  380.  Power  to  punish  for  contempt  is  vested 
in  courts  for  their  own  protection.  Its  object  is  to  insure 
respect  for  their  rules  and  orders,  obedience  to  their  processes, 
and  freedom  from  disturbance  or  interference  with  the  due 
and  regular  course  of  their  proceedings.  5  Am.  &  Eng.  Enc. 
Law,  p.  780;  Thomp.  Trials,  Sec.  124.  A  publication  during 
the  course  of  a  trial  which  reflects  on  the  court,  or  assails  the 
litigants,  or  seeks  to  intimidate  witnesses,  or  spreads  before 
the  jury  an  opinion  upon  the  merits  of  the  controversy,  or 
threatens  them  with  public  odium,  or  attempts  to  dictate  the 
decision,  or  in  any  improper  way  endeavors  to  influence  the 
determination,  is  unquestionably  a  contempt  of  court  {In  re 
Shortridge,  99  Cal.  532;  3-t  Pac.  227);  but  at  the  same  time  a 
litigant  has  no  appeal  from  the  action  of  the  judge  in  dealing 
Avith  the  matter.  The  litigant  may  not  control  this  process, 
which  is  designed  for  the  protection  of  the  court,  and  which 
is  to  be  invoked  or  not,  as  its  discretion  may  dictate,  but  which 
should  be  employed  freely  where  the  interests  of  justice  and 
the  rights  of  litigants  demand  it.  "  The  doctrine  is  well  nigh 
without  exception  that  the  issuance  vel  non  of  contempt  i)ro- 
ceedings  lies  in  every  instance  in  the  sound  discretion  of  the 
court."  4  Enc.  PI.  &  Prac,  p.  774.  If  by  tlie  failure  of  the 
court  to  proceed  against  the  editors  or  any  of  them,  defendant 
has  failed  to  obtain  the  fair  and  impartial  trial  to  which  the 
law  entitles  him,  he  may  make  that  ajipear  upon  his  motion 
for  a  new  trial,  and  the  question  will  thus  come  before  us 
properly  for  review.  In  this  case  the  question  is  raised  in  the 
manner  indicated,  and  it  will  be  considered  upon  its  merits  in 
the  proper  place. 

Numerous  objections  were  made  and  exceptions  reserved  to 
the  court's  rulings  in  admitting  and  rejecting  evidence.  These 
rulings  have  been  subjected  to  critical  examination,  including 
those  which  in  appellant's  brief  receive  no  discussion,  but  are 
grouped  by  number,  and  collectively  assigned  as  error.  While 
none,  therefore,  has  been  ignored,  we  will  here  consider  only 
such  as  merit  particular  mention. 

{a)  Dr.  Barrett  was  shown  to  be  a  practicing  physician  and 
surgeon.  He  performed  the  autopsy  upon  the  body  of 
the  dead  girl,  gave  evidence  of  its  condition,  and  expressed 
his  judgment  that   the  cause    of    death    was  strangulation. 


PEOPLE  V.  DURRANT. 


523 


He  was  then  asked,  "What,  in  your  judgment,  was  the 
means  used  for  the  stranguhition ?"  Objection  was  made, 
upon  the  sole  ground  that  no  proper  foundation  had  been  laid 
for  tlie  question.  The  objection  was  properly  overruled.  The 
objection  does  not  present  the  point  that  the  fact  sought  to  be 
elicited  was  not  the  subject  of  expert  inquiry;  nor  is  that 
proposition  argued  in  the  briefs.  That  being  conceded,  the 
objection  that  a  proper  foundation  for  the  question  had  not 
been  laid  could  not  be  sustained,  when  the  witness  was  a  phy- 
sician and  surgeon,  whose  competency  had  been  abundantly 
shown.  The  witness  answered :  "  I  think  the  means  used 
were  hands."  The  appellant  insists  that  the  court  erred  in 
refusing  to  strike  this  answer  out,  as  the  question  called  for 
the  witness'  judgment,  and  he  only  gave  his  thought.  The 
expressed  thought  of  the  expert  was  clearly  his  judgment. 

((!•)  The  clothing  of  Blanche  Lamont,  admitted  in  evidence, 
was  draped  upon  a  dressmaker's  frame,  which  itself  was  not 
in  evidence.  It  v.as  not  claimed  that  the  frame  represented 
the  height,  size,  or  figure  of  the  girl.  Error  is  predicated  upon 
the  use  of  the  frame  and  the  refusal  of  the  court  to  order  the 
garments  removed  from  it.  The  frame  afforded  a  convenient 
mode  for  displaying  the  wearing  apparel,  concerning  which 
much  testimony  was  taken.  We  can  discern  no  more  impro- 
priety or  irregularity  in  the  plan  pursued  than  would  have 
existed  if  the  garments  had  been  hung  upon  a  clothesline,  or 
huddled  into  a  corner. 

(f)  Mrs.  Vogel,  cross-examined  by  the  defense,  and  asked 
how  she  fixed  the  date  upon  which  she  saw  Durrant  as  being 
April  3d,  replied  that  it  was  Ir^cause  of  a  postal  card  which  her 
husband  received  that  day,  and  which  had  been  directed  to 
732  Natoma  street.  "  That  place  we  own,  but  is  occupied  by 
tenants.  I  have  never  lived  there.  Q.  Well,  is  that  your 
property  or  your  husband's  property  ?  A.  What  he  got  is 
mine,  what  I  got  is  his.  Q.  Do  you  understand  my  question  ? 
1  asked  you  in  whose  name  does  the  title  to  this  property  on 
Xatoma  street  stand  ? "  Hero  the  judge  interposed,  and  stat- 
ing that  he  could  see  no  possible  materiality  or  relevancy  to 
the  question,  instructed  the  witness  that  she  need  not  answer. 
There  was  in  this  no  error.  Indeed,  it  is  the  duty  of  a  court, 
and  one  not  often  enougii  performed,  to  expedite  business  by 
curtailing  cross-examinations  upon  immaterial  and  irrelevant 


i  t 


I: 


521 


AMERICAN  CRIMINAL  REPORTS. 


;f            ^ 

^ 

il      iW^ 

■■ 

1 

n    .  . 


matters.  "We  can  not  perceive  the  slightest  pertinency  to  tlie 
inquiry.  No  question  of  right  or  title  to  property  was  oven 
collaterally  or  remotely  involved,  and  had  the  witness  answtM-od, 
the  subject  being  immaterial  matter  educed  on  c"oss-exaiiiina- 
tion,  the  defense  would  have  been  bound  by  her  statoiiuMit 
without  right  to  impeach  it,  even  had  it  been  false.  Code  Civ. 
Proc,  §  204S;  Peoj>/c  v.  McKeUer,  53  Cal.  05. 

(</)  Mrs.  Crossett  declared  that,  to  the  best  of  her  recollec- 
tion, the  young  lady  whom  she  saw  with  defendant  wore  a 
broad-brimmed  hat,  iigiit,  v/ith  large  bows  and  feathers  in 
front.  She  did  not  recognize  the  hat  exhibited  to  her,  which 
had  been  ])roved  to  be  the  one  worn  by  the  dead  girl.  She 
was  then  asked  :  "  Can  you  tell  whether  it  was  a  hat  similar 
to  that,  this  young  lady  wore  'i  "  Objection  was  made  that 
the  witness  had  already  stated  that  she  could  not  recognize  it. 
The  court  permitted  the  question,  saying :  "  I  think  they  have 
a  right  to  ask  whether  there  is  any  similarity,  and  if  so,  what 
similarity  there  is,  between  the  hat  shown  to  her  and  the  hat 
she  saw  the  ^'^oung  lady  wear."  The  manifest  soundness  of  the 
rulino'  renders  comment  nnnecessary. 

The  same  witness  was  interrogated  on  cross-examination  as 
follows  :  "  Q.  Have  you  seen  him  [Durrant]  at  all  since  last 
September,  189-4?  A.  Yes,  sir.  Q.  That  is,  you  imagine 
you  have?  Mr.  Barnes:  I  object  to  the  question.  The 
court :  That  wouhl  not  be  ])roper.  The  lady  is  telling  what 
she  has  seen.  I  do  not  think,  when  a  lady  says,  '  J  have  seen 
him  since  September,'  that  counsel  has  a  right  to  say,  'You 
imagine  you  did  ? '  *  *  *  It  disconcerts  the  witness,  and 
throws  a  very  serious  doubt  upon  the  statonient.  You  should 
have  the  right  to  cross-examine  this  witness  and  all  other  wit- 
nesses, but  I  do  not  concede  that  this  is  a  proper  way  to  do  it. 
Mr.  Deuprey  :  We  will  have  to  take  an  exce])ti()n.  The  court: 
Tou  have  your  exception,  certainly,  to  every  ruling  of  the 
court;  but  I  say  that  this  and  all  witnesses  in  this  court  are 
to  be  treated  fairly.  Mr.  Deuprey:  I  did,  sir.  treat  this  wit- 
ness fairly.  The  court :  The  court  does  not  believe  you  have. 
Mr.  Deuprey  :  I  take  an  exception  to  the  court's  renuirks." 
Upon  this  ruling  and  these  remarks  error  is  aflirmed.  It  is 
the  riirht  of  a  witness  to  be  protected  from  irrelevant,  improper 
oi'  insulting  questions,  and  from  harsh  and  insulting  demeanor; 
to  bo  detained  only  so  long  as  the  interests  of  justice  require; 


|fT> 


PEOPLE  V.  DURRANT. 


525 


to  be  examined  only  as  to  matters  legal  and  pertinent  to  the 
issue.  Code  Civ.  Proc,  §  2066.  The  protection  which  the 
Code  thus  affords  to  witnesses  could  be  more  often  extended 
bv  judges  with  a  salutary  effect  upon  judicial  proceedings. 
The  witness  (a  lady)  had  testified  courteously  and  positively 
that  she  had  seen  defendant  after  the  date  named.  The  inter- 
jection of  counsel  was  not  legitimate  cross-examination,  and 
justified  the  interposition  of  the  court. 

(e)  Blanche  Laraont's  sist^^r  Maud  was  living  with  her  at 
the  time  of  her  disappearance.  Slie  was  shown  a  picture  of 
Blanche  taken  about  three  years  before  the  date  of  her  testi- 
mony, and  was  asked  whether  or  not  the  photograjjh  was  a 
fair  representation  of  her  sister  as  she  was  upon  April  3d. 
Over  objection  and  exception,  slie  was  permitted  to  answer. 
It  is  a  general  rule,  without  contradiction,  that,  where  the 
photograph  is  shown  to  be  a  faithful  representation  of  what  it 
purports  to  reproduce,  it  is  admissible  as  an  appropriate  aid  to 
the  jury  in  applying  the  evidence,  and  this  is  equally  true 
whether  the  photograph  be  of  persons,  things,  or  places.  Eice, 
Cr.Ev.p.  151;  Whart.  Cr.  Ev.  (!)th  Ed.),  §  514;  Thomp.  Trials, 
§  809.  The  fact  that  the  photograph  was  taken  two  or  more 
years  before  the  date  of  the  girl's  death  did  not  justify  its 
exclusion  after  the  testimony  of  the  sister  that  it  fairly  repre- 
sented Blanche  at  the  time  of  her  disappearance. 

(/)  George  E.  King,  upon  direct  examination  for  the  peo- 
ple, testified  that,  when  he  returned  to  the  church  after  buy- 
ins  the  bromo  seltzer  for  Durrant,  he  found  him  either  stand- 
ing  in  the  lobby  or  lying  on  the  pUitform  in  the  Sunday-school 
room,  but  in  which  place  he  could  not  remember.  For  the 
purpose  of  refreshing  his  memoi'j«,  the  district  attorney,  over 
objection  and  exce]ition  by  the  defense,  was  permitted  to  read 
the  following  question  and  answer  from  the  testimony  of  the 
same  witness  upon  the  preliminary  examination  in  the  police 
court:  "Q.  When  you  returned,  what  occurred  then  ?  A.  I 
met  Durrant  in  the  vestibule  of  the  church  by  the  front  door, 
and  he  took  the  seltzer,  and  took  a  dose  of  it.  He  went  into 
the  kitchen  to  do  that."  The  witness  responded:  "  I  did  so 
testify.  I  don't  think  that  testimony  was  correct.  In  the 
cross-examination  I  was  asked  if  he  was  not  lying  on  the  plat- 
form, and  that  created  a  doubt  in  my  mind,  and  now  I  am  nef 
sure  either  way."    The  witness  would  have  had  the  undoubted 


^r-  :1 


520 


AMERICAN  CRIMINAL  REPORTS. 


nl 

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right  to  have  read  his  testimony  given  upon  the  examination 
for  the  purpose  of  refreshing  his  memory.  Code  Civ.  Proc. 
§  2017.  Such  a  transcript  may  at  least  be  regarded  as  a  ])ri- 
vate  memorandum.  Jieid  v.  lieid,  73  Cal.  200,  14  Pac.  781. 
"When  a  witness  called  by  a  party  fails  to  testify  to  matters 
previously  within  his  recollection,  or  gives  evidence  in  appar- 
ent variance  with  that  formerly  given,  it  is  not  incumbent 
upon  the  party  producing  th'^  witness  to  wait  for  the  assaults 
of  the  cross-examination  to  expose  seeming  inco)isistencies  and 
discrepancies.  While  he  may  not  impeach  his  witness  (saving 
under  certain  exceptional  circumstances),  he  may  with  propri- 
ety refresh  his  recollection,  to  the  end  that  the  witness  and  his 
present  evidence  may  both  be  put  fairly  and  in  their  proper 
light  before  the  jury.  The  answer  above  quoted  affords  a 
good  illustration  of  this.  The  witness  admits  the  discrepancy 
between  his  former  and  his  present  testimony,  and  candidly 
explains  it  as  arising  from  a  doubt  created  by  his  former  cross- 
examination.  There  was  here  no  impropriety  and  no  injury 
to  defendant. 

{g)  The  janitor  of  the  church  was  asked  upon  direct  exam- 
ination if  an}'  one  beside  himself  had  a  key  to  his  room.  He 
replied:  "  I  have  sometimes  left  my  room  door  loektJ,  uiul 
found  it  open.  Therefore  I  conclude  that  some  one  had  a  key 
to  it."  The  refusal  of  the  court  to  strike  this  answer  out  is 
assigned  as  error,  "  because,  by  its  nature,  the  answer  only 
had  a  tendency  to  cloud  the  minds  of  the  jury,"  and  "  necessa- 
rily injured  the  case  of  defendant."  We  are  unable  to  perceive 
any  force  in  these  objections. 

{h)  The  body  of  Blanche  Lamont  was  found  nude  and 
supine,  with  a  small  wooden  block  upon  each  side  of  tlie 
head,  apparently  used  to  hold  it  in  an  upright  position. 
Dr.  Charles  E.  Farnum  was  called  for  the  jwople,  and  testi- 
fied that  he  was  the  demonstrator  of  anatomy  at  the  trooper 
Medical  College,  which  defendant  attended,  and  that  wooden 
blocks  were  employed  for  purposes  in  relation  to  dead 
bodies.  He  was  next  asked :  "  For  what  ])urpose  are  they 
used  ? "  Objection  was  made  that  the  question  was  irrelevant, 
immaterial  and  incompetent  for  any  purpose.  The  line  of 
proof  sought  to  be  established  by  the  prosecution  was  quite 
apparent.  It  was  an  endeavor  to  show,  by  the  demonstrator 
of  anatomy,  under  whom  defendant  was  studying,  some  tech- 


'^! 


PEOPLE  V.  DURRANT. 


527 


nical  or  peculiar  use  of  wooden  blocks  in  connection  with  dis- 
secting room  corpses,  similar  to  the  use  made  of  blocks  about 
the  head  of  the  body  of  the  dead  girl.  The  court  could  not 
foresee  the  answer,  and  properly  overruled  the  objection;  for, 
if  the  proposition  could  be  established,  it  was  clearly  compe- 
tent for  the  people  to  do  so.  In  this,  however,  there  was  a 
signal  failure.  The  answer  disclosed  no  possible  connection 
between  the  facts  in  the  case  of  the  dead  girl  and  the  custom 
of  the  dissecting  room.  While  the  question  was  pertinent, 
the  answer  thereto  failed  to  furnish  the  required  proof.  It 
would  unquestionably  have  been  stricken  out  on  motion  of 
the  defense.  But  no  motion  was  made;  doubtless  because  the 
answer  not  only  worked  no  injury  to  the  defense,  but  was  an 
affirmative  advantage  to  it. 

The  record  next  discloses  the  following  question,  objection, 
exception  and  answer :  "  Q.  Let  me  put  a  hypothetical  case 
to  you  for  a  moment:  Suppose  you  had  in  your  custody  or 
care  a  body  which  had  recently  died,  and  it  was  still  almost 
warm  with  life.  You  are  acquainted  with  anatomy  and  surgery, 
and  you  know  that  in  a  certain  length  of  time  rifjor  mortis  would 
set  in,  when  the  body  and  the  members  of  the  body  would 
become  stiff.  Now,  if  you  wanted  to  keep  the  head— the  face 
and  neck — in  an  upright  position,  in  a  straight  position,  not 
turned  to  one  side  or  the  other,  what  would  you  do  in  order 
to  keep  it  in  that  position  ?  Mr.  Deuprey :  We  object  to  that, 
not  as  a  hypothetical  question  involving  any  elements  in  this 
case.  (Objection  overruled;  defendant  excepts.)  A.  I  would 
place  it  first  in  the  position  in  which  I  wanted  it,  and  if  it 
did  not  remain  there,  I  would  prop  it  by  supports  in  the  desired 


position. 


*     * 


My  last  answer  is  what  I,  as  an  individual, 


would  do."  The  objection,  it  will  be  noted,  is  not  upon  the 
ground  that  the  inquiry  is  not  a  subject  of  expert  evidence, 
but  is  based  upon  the  one  proposition  "  that  the  hypothetical 
question  does  not  involve  any  elements  in  the  case."  In  strict- 
ness, therefore,  this  consideration  might  begin  and  end  with  a 
disposition  of  the  single  ground  of  objection  urged;  and  when 
it  appears,  as  by  fair  inference  it  does,  tliat  some  one  had  mur- 
dered the  girl,  and  that  some  one  was  present  with  her  still 
warm  body,  and  that  some  one  placed  the  blocks  for  the  pur- 
pose of  holding  the  head  upright,  it  certainly  can  not  be  said 
that  none  of  the  elements  of  the  case  were  involved  in  the  hypo- 


N^i^.jl 


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I  ■  1.; 


vm 


528 


AMERICAN  CRIMINAL  REPORTS. 


thetical  question.  Indeed,  while  counsel  for  the  apiiellant, 
ar^uinj;  this  proposition,  strenuously  insist  that  "  there  is  no 
evidence  in  the  record  tliat  any  person  wanted  to  iceep  the 
head,  the  face  or  the  neck  in  an  upright  or  any  ])osition,  or  in 
a  straight  position,  not  turned  to  one  side  or  the  other;  there 
was  nothing  in  the  way  of  circumstance  or  in  tlie  way  of  fact 
established  that  would  permit  the  presumption  of  the  condi- 
tions forced  into  the  so-called  '  hypothetical  question,'" — Ave 
need  but  turn  back  four  pages  of  their  brief  to  find  the  curi- 
ously destructive  declaration  that  "  the  fancy  struck  the  mur- 
derer of  this  girl  to  place  the  head  in  a  certain  position,  and 
he  did  the  most  natural  thing  in  the  world — picked  uj)  a  couple 
of  small  blocks,  evidently  lying  near,  to  hold  the  head  in  the 
position  desired."  Morfiover,  a  hypothetical  question  need  not 
embrace  all  the  facts  in  evidence,  or  even  be  limited  to  .''acts 
proved.  It  must  be  based  upon  facts  in  evidence,  but  may  be 
addressed  to  any  reasonable  theory  which  ma}'  be  taken  of 
them.  In  Filer  v.  Railroad  Co.,  49  N.  Y.  40,  it  is  well  said  :  "  It 
is  the  privilege  of  counsel  to  assume,  within  the  limits  of  the 
evidence,  any  state  of  facts  which  he  claims  the  evidence  justi- 
fies, and  base  the  opinion  of  experts  upon  tlie  facts  thus  assumed. 
The  facts  are  assumed  for  the  purpose  of  the  question,  and  for 
no  other  purpose."  In  Thompson  on  Trials  (section  004)  the 
rule  is  thus  aptly  and  succinctly  stated  :  "The  rule,  then,  is 
that  the  hypothetical  questions  must  be  based  either  upon  the 
hypoth<[!sis  of  the  truth  of  all  the  evidence,  or  upon  a  hy|)oth- 
esis  specially  framed  of  certain  facts  assumed  to  be  proved  for 
the  purpose  of  the  incjuiry.  Such  questions  leave  it  for  the 
jury  to  decide,  in  the  first  case,  whether  the  evidence  is  true  or 
not,  and  in  the  second  case,  whether  the  particular  facts 
assumed  are  or  are  not  proved." 

But  as  in  criminal  cases,  and  particularly  in  cases  of  capital 
crime,  the  law  is  reluctant  to  denv  a  defendant  a  full  consid- 
eration  of  his  points  because  of  technical  errors  or  omissions 
of  his  counsel,  upon  whom  he  must  rely,  we  pass  to  the  con- 
sideration of  the  proposition  that  the  hA'pothetical  question 
and  its  answer  were  not  the  subject  of  expert  evidence— a 
ground  of  objection  not  presented  to  the  trial  judge.  Tpon 
this  proposition  the  defense  is  undoubtedh'  correct.  A  jury- 
man would  be  absolutely  deficient  in  common  sense  and  com- 
mon knowledge  who  did  not  know  that  the  way  to  keep  an 


PEOPLE  V.  DURRANT. 


629 


inanimate  object  in  a  given  position  would  be  to  support  it  by 
props  or  stays  in  that  position.  And  the  physician's  answer 
gives  expression  to  this  when  he  says  :  "  That  is  what  I,  as 
an  individual,  would  do."  There  was  here  no  question  of  pro- 
fessional, scientific,  or  technical  skill  or  knowledge.  But  the 
question  and  answer  were  absolutely  without  injury.  Not  all 
matter  improperly  made  the  subject  of  expert  evidence  work 
harmful  error.  Where  the  ultimate  conclusion  is  one  to  be 
reached  by  the  jury  itself  from  facts  before  it,  and  so-called 
"  expert  evidence  "  is  allowed,  which  presents  to  a  jury  a  con- 
clusion other  than  that  to  which  they  might  have  arrived,  the 
admission  of  this  improper  evidence  is  tantamount  to  a  dec- 
laration by  the  court  that  they  may  set  aside  their  exclusive 
rio-ht  of  judging,  and  accept  the  judgment  of  the  expert.  In 
such  cases  injury  is  apparent.  But  it  frequently  happens  that 
under  the  form  of  expert  evidence,  answers  are  given  which 
are  so  clearly  a  part  of  common  knowledge  that  no  injury 
could  have  resulted.  The  answer  under  consideration  is  one 
of  them.  Had  the  witness  been  asked :  '•  If  you  throw  a 
stone  into  a  pond  of  water,  will  it  float,  or  sink  ?  If  you  strike 
a  man  on  the  head  with  an  ax,  will  it  injure  or  benefit  him  ? " 
—while  the  questions  do  not  call  for  expert  evidence,  their 
answers,  particularly  when  as  in  this  case,  they  are  correctly 
given,  could,  in  the  nature  of  things,  have  worked  no  harm. 

{{)  The  defense  showed  by  Police  OtRcer  Reynolds  that,  two 
days  after  the  discovery  of  the  body,  he  found  a  chisel  and 
hammer  in  the  pastor's  study  in  the  church,  and  that  he  tried 
the  chisel  upon  the  marks.  He  testified  :  "  My  recollection 
is  that  there  were  two  marks  I  tried  to  fit  the  chisel  to.  There 
was  no  mark  that  filled  it  exactly.  There  was  a  little  play. 
You  could  move  the  chisel  up  and  down.  I  could  not  tell  if 
there  was  any  more  play  than  would  ordinarily  have  occurred 
in  using  a  chisel  for  prying.  *  ♦  *  I  saw  a  mark  on  the 
jamb  of  that  door,  as  if  at  some  time  a  blow  had  been  struck 
with  a  hammer.  *  *  *  At  some  time  the  hammer  was  tried 
in  that  mark."  The  defense  then  introduced  the  hammer  and 
chisel  in  evidence.  The  plain  purport  of  this  evidence  was  to 
direct  suspicion  to  the  minister.  In  rebuttal,  the  belfry  door 
and  jamb  were  offered  in  evidence  by  the  prosecution,  after 
testimony  from  the  officer  that  they  wore  in  the  same  condi- 
tion as  when  previously  he  had  made  the  test,  saving  for  the 
84 


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L    \m 

530 


AMERICAN  CRIMINAL  REPORTS. 


absence  of  the  lock  plate.  The  evidence  was  permissible 
The  witness  was  then  asked  to  see  if  he  could  fit  the  chisel 
to  the  marks.  It  was  objected  that  it  was  for  the  jury 
to  satisfy  themselves  upon  this  matter  without  tlie  interven- 
tion of  the  witness.  It  is  true,  the  jurors  could  have  rnade 
the  experiment  to  their  satisfaction  without  the  aid  of  the 
officer;  but,  he  having  testified  to  his  former  experiment,  the 
prosecution  was  entitled  to  have  him  repeat  it  before  the  jurv. 
The  result  would  be,  as  the  jury  determined,  either  to  sujjpok 
or  to  disprove  his  oral  evidence. 

(J)  The  defendant  offered  himself  as  a  witness,  and  told 
with  much  circumstantiality  and  detail  how  he  had  sjK'nt  his 
time  upon  April  3d.  Many  objections  were  interposed  to 
questions  propounded  him  upon  cross-examination.  A  minute 
examination  fails  to  disclose  any  error  in  the  court's  rulings. 
The  questions  allowed  and  the  sco|K)  of  the  cross-examination 
are  strictly  within  the  rule  expressed  in  People  v.  Gdlluijhcr 
100  Cal.  406,  35  Pac.  80.  One  or  two  of  the  rulings  should, 
perhaps,  receive  more  particular  consideration. 

The  defendant  testified  upon  direct  examination  that,  when 
he  parted  with  Blanche  Lament  upon  the  morning  of  A|)ril3d, 
it  was  the  last  time  that  he  ever  saw  her,  dead  or  alive,  and 
was  asked  upon  cross-examination  if  he  had  not  prepared  a  state- 
ment which  was  put  into  a  sealed  envelope,  addressed  to  his 
counsel,  with  the  instruction  :  "  To  be  ojjened  if  I  am  con- 
victed, and  to  be  returned  unopened  if  I  am  not  convicted." 
To  this  and  several  like  questions  objections  were  inter|)osed, 
upon  the  ground  that  the  statement,  if  made,  was  privileged. 
The  court  ruled,  and  properly,  that  the  questions  were  i)re- 
liminary.  It  was  the  fact,  and  not  the  contents  of  the  state- 
ment, which  was  the  subject  of  inquiry,  and  no  effort  was 
made  to  extort  from  the  witness  any  information  of  the  latter. 
The  court  further  declared  that,  if  the  people  failed  to  follow 
this  preliminary  inquiry  by  proper  proofs,  it  would,  on  motion, 
strike  out  the  evidence.  The  witness  answered  that  he  had 
made  no  such  statement,  and  there  the  matter  rested;  pre- 
sumptively to  the  advantage  of  the  defendant,  certainly  not 
to  his  injury.  From  the  fact  that  no  motion  was  made  to 
strike  out  the  evidence,  it  must  be  concluded  that  defendant 
acquiesced  in  its  remaining  in  the  case.  Cederherg  v.  liohison, 
100  Cal.  93,  3-A  Pac.  625.    The  court  was  further  justified  in 


PEOPLE  V.  DURRANT. 


531 


its  rulinj;  by  the  consideration  that  it  could  not  foretell  the 
line  of  proof  which  the  people  might  take  in  rebuttal.  The 
contents  of  the  statement,  while  privileged  matter  between 
the  client  and  attorney  and  all  who  had  acquired  knowledge 
of  it  through  a  relation  of  legal  confidence,  would  not  be  priv- 
ilef^ed  if  known  to  one  who  had  acquired  his  knowledge  under 
other  circumstances.  The  court  could  not  know  that  it  was 
not  some  such  evidence  which  would  be  proposed  at  the 
proper  time. 

The  prosecution  then  asked  the  witness,  with  specifications 
of  time,  place  and  circumstance,  if  he  had  not  told  Miss  Car- 
rie Cunningham  that  he  saw  Blanche  Lamont  upon  the  second 
landing,  and  that  slie  was  murdered  upon  the  second  landing. 
This  was  in  rebuttal  of  defendant's  testimony  that  he  had 
never  seen  the  girl  after  the  morning  of  April  3d.  It  is 
arf'ued  by  appellant's  counsel  that  the  communication,  if  made, 
was  privileged.  But  considering  that  Miss  Cunningham  was 
a  newspaper  reporter,  and  is  not  shown  to  have  been  the  wife 
or  to  have  stood  to  the  defendant  in  any  other  relation  of  legal 
confidence,  the  claim  scarcely  merits  comment. 

(k)  Miss  Cunningham,  called  in  rebuttal,  was  asked  whether 
defendant  did  or  did  not  make  to  her  the  statement  above 
mentioned.  It  is  asserted  that  the  allowance  by  the  court  of 
these  questions  was  a  "  gr<iss  outrage,"  and  "  bore  down  to 
the  ground  all  the  rules  of  evidence."  It  was  strictly  rebuttal 
evidence,  by  way  of  imj^eacliment,  under  well  settled  rules 
of  law,  and  under  the  express  declaration  of  section  2052  of 
the  Code  of  Civil  Procedure. 

The  foregoing  are  all  of  the  alleged  errors  in  receiving  and 
rejecting  evidence  which  call  for  especial  comment. 

It  came  to  the  knowledge  of  the  court,  during  the  progress 
of  the  trial,  that  one  II.  J.  McCoy  had  said  to  a  juror:  "  If 
you  don't  hang  him  (meaning  defendant),  we  will  hang  you." 
For  this  flagrant  contempt,  McCoy  was  at  once  cited  to  ap- 
pear. An  examination  was  held.  By  this  it  was  disclosed 
that  the  language  was  used  jocularly,  and  without  serious 
significance.  At  least  so  the  juror  to  whom  it  was  addressed 
testified  that  he  received  and  understood  it.  For  this  con- 
tempt, McCoy  was  promptly  and  properly  punished.  The 
proceedings  were  conducted  in  the  presence  of  the  jury.  This 
circumstance  is  now  for  the    first    time    charged  as  error. 


-T-, 


n>MmM 


m% 


tx 


i: 


v.* 


hi  \ 


532 


AMERICAN  CRIMINAL  REPORTS. 


Doubtless,  had  the  defense  desired  the  jury  excused  during 
the  investigation,  tlie  court  would  have  acceded  to  the  request 
but  no  such  suggestion  was  made.  Wo  fail  to  soo  how  the 
defendant  could  have  been  injured  by  this.  The  mode  pur- 
sued, we  think,  had  a  salutary,  rather  than  malign,  effect. 
The  claim  that  defendant  could  have  been  prejudiced  in  the 
minds  of  the  jury  is  completely  answered  by  the  facts — First 
that  it  was  not  the  defense  which  either  instituted  or  con- 
ducted the  contempt  proceedings;  and,  second,  by  the  utlirm- 
ative  declarations  of  each  of  the  jurors  under  oath  that  he 
reached  his  verdict  from  a  consideration  of  the  evidence  in  the 
case,  and  from  that  alone. 

We  perceive  no  abuse  of  his  office  or  unfairness  to  defend- 
ant in  the  argument  of  the  district  attorney.  In  showing  an 
empty  box  to  illustrate  the  amount  of  gas  which,  under  the 
evidence,  would  leak  in  a  given  time,  both  the  district  attornev 
and  the  judge  were  careful  to  inform  the  jury  that  the  box 
was  not  an  exhibit;  that  no  proof  of  its  capacity  was  before 
them;  and  that  they  were  not  to  accept  the  district  attorney's 
statement  as  evidence.  The  box  was  used  simply  for  purposes 
of  illustration,  and,  while  the  prjxctice  is  not  commended,  its 
exhibition  to  the  jury  could  have  worked  no  injury  in  this  case 
under  the  cautions  of  the  court,  and,  in  strictness,  could  no 
more  be  regarded  as  error  than  would  have  been  the  like  em- 
ployment of  any  ordinary  object  in  the  court  room. 

Error  is  assigned  for  the  court's  refusal  to  give  certain 
instructions,  proposed  by  the  defense,  in  number  36.  Argu- 
ment is  addressed  to  but  few  of  them.  These  will  be  consid- 
ered. The  others  not  argued  have  not  been  overlooked,  but 
the}'^  either  contain  manifest  errors  of  law,  or  are  so  completelj' 
covered  by  those  given  of  the  court's  own  motion  that  it  may 
with  safety  be  concluded  that  counsel's  failure  to  discuss  thorn 
is  a  tacit  recognition  that  as  to  them  no  error  was  committed. 

Of  the  proposed  instructions.  No.  6  was  refused  because  sub- 
stantially given  in  the  charge  of  the  court.     It  was  so  given. 

No.  8  deals  with  the  danger  to  be  avoided  and  the  caution 
to  be  exercised  in  reaching  a  conclusion  u])on  circumstantial 
evidence.  Upon  this  subject,  also,  the  jury  was  fully  and 
fairly  advised  by  the  court. 

The  propositions  of  law  contained  in  the  first  portion  of 
No.  10  were  given  by  the  court  with  more  elaboration  and 


PEOPLE  V.  DURRANT. 


533 


exactness  than  appear  in  the  proposed  instruction.  It  was 
not  error  for  the  court  to  decline  to  give  the  last  portion.  It 
is  quite  true  liiat  the  law  never  requires  the  sacrifice  of  a  vic- 
tim. But  the  jurors  had  been  carefully  instructed  as  to  their 
duties,  and  had  been  repeatedly  told  that  unless,  upon  clear 
and  co«^ont  proof,  satisfying  their  minds  beyond  a  reasonable 
(loul)t,  they  believed  defendant  guilty,  it  was  their  duty  to 
acquit  him.  It  was  not  incumbent  uj)on  the  court  to  instruct 
the  jury,  as  matter  of  law,  that  "  it  is  safer  to  err  in  acquit- 
ting." There  is  not  in  contemplation  of  law  any  such  factor 
of  safety  for  error. 

Proposed  instructions  11-lC,  upon  the  subject  of  alihl,  were 
fully  embraced  in  those  given  by  the  court,  as  was  also  the  law 
upon  the  matter  of  identification.  Of  the  remaining  instruc- 
tions the  same  may  be  said. 

It  may  here  be  noted  that  the  appellant  does  not  make 
serious  complaint  that  any  of  the  instructions  actually  given 
by  the  court  were  erroneous  in  point  of  law,  but  contends  that 
in  some  instances  the  propositions  which  he  sought  to  have  laid 
before  the  jury  were  not  adequately  presented.  The  jury,  how- 
ever, was  ably,  carefully,  and  elaborately  instructed  and  we 
can  discern  no  just  ground  of  complaint  in  this  regard. 

The  grounds  for  a  new  trial  presented  by  defendant  have 
for  the  most  part  been  covered  by  what  has  been  said.  One 
of  them,  however,  still  remains  for  consideration.  This  is  that 
the  proceedings  were  so  conducted  as  to  deprive  defendant  of 
his  constitutional  right  to  a  fair  and  impartial  trial.  Under 
this  head  it  is  urged  that,  by  the  repeated  publications  in  the 
newspapers  of  San  Francisco,  public  feeling  was  unjustly 
aroused  to  bitter  hostility  against  the  defendant;  that  witnesses 
who  would  otherwise  have  given  valuable  testimony  in  his  favor 
were  so  intimidated  that  either  thev  refused  to  testifv,  or,  in 
testifying,  gave  colorless  and  worthless  evidence;  and  that  the 
jury  itself,  impelled  by  fear,  yielded  to  the  public  clamor  and 
demand  that  the  defendant  should  be  convicted.  Many  hun- 
dreds of  pages  of  the  transcript  are  given  over  to  a  presenta- 
tion of  the  newspa|ier  articles  complained  of. 

The  murder  of  Blanche  Lamont  was  a  crime  of  so  atrocious 
a  character  that  the  community  was  greatly  aroused.  Its 
ghastly  and  sensation.al  features  were  seized  upon  with  avidity 
by  the  newspapers,  and  daily  paraded  and  exploited  before 
their  horrified  readers.    When  Durrunt  was  arrested  for  the 


634 


AMERICAN  CRIMINAL  REPORTS. 


ci'imo, there  was  no  reservation  of  jutlgniont  upon  their  part,  but 
they  proceeded  with  unanimity  to  hohl  him  up  to  tho  j)ublic 
as  the  guilty  man.     Durin*?  tlie  trial  of  the  case  they  vied  with 
each  other  in  sensational  discoveries  and  prophecies  concorninf^ 
new  evidence  and  strange  witnesses.  They  maintained  tliroii"-!!. 
out  the  attitude  which  they  originally  assumed,  and  from  liist 
to  last  continued  to  treat  defendant  as  the  und()ul)ted  criminal. 
All  this  tho  record   presented  by  appellant  abundantly  estab- 
lishes.   But  when  a  community  is  deei)ly  stirred  over  the  com- 
mission   of  some  ai)palling  crime,  and  tho  public  ami  the 
public    prints    are    clamoring    that    ]mnishment    shall    bo 
meted  out  for  it,  unless  we   must  say  that,  under  such  cir- 
cumstances, as  matter  of  law,  a  defendant  can  not  have  the 
trial  guaranteed  him  by  the  constitution,  such  a  showin<,nloes 
not  conclude  the  question.     Under  these  circumstances,  all  men 
do  not  forsake  reason;  some  still  i)reserve  a  dispassionate  jiidir. 
ment;  and  if  it  bo  made   to  appear  that   tiie  defendant  was 
tried  by  a  jury  of  such,  uninfluenced  by  aught  save  the  evi- 
dence, then  in  this  regard  none  of  his  rights  has  been  violated. 
After  rigorous  examination  by  prosecution   and   defense,  it 
appears  that  such   a  jury  was  obtained  witiiout  exiiaiistinw 
more  than  three-lifths  of  defendant's  i)erempt()ry  challonnes. 
Each  juror  makes  solemn  afKdavit  that  he  did  not  at  any  time 
during  the  trial  of  the  cause, and  while  he  was  ini))ane]e(i  ami 
sworn  as  a  juror,  read  or  hear  read  any  of  the  articles,  state- 
ments or  comments  |)ublished  in  any  of  the  newspapers  con- 
cerning this  case;  that  ho  at  all  times  hccided  the  admonition 
of  the  court  given  at  e.ich  a«ljournment  thereof,  and  was  at  no 
time  influenced  in  any  way,  shape  or  manner  by  any  extraneous 
matter  whatever  whilea  juror,  either  by  newspapers,  conversa- 
tions, or  public  sentiment,  if  any  such  sentiment  existed;  tliat 
he  received  no  impression  as  to  the  defendant's  guilt  or  inno- 
cence outside  of  the  court  room,  but  decided  the  case,  after 
deliberation,  solely  according  to  tho  law  and  the  evidence,  to 
the  best  of  his  ability  and  understanding,  and  not  otherwise. 
It  can  not  be  said  that  there  was  anv  error  in  refusin^f  a  new 
trial  under  such  a  showing. 

The  claim  that  witnesses  for  the  defense  were  intimidated 
and  kept  from  testifying,  is  not  su))ported.  It  was  ex])ected 
to  prove  by  a  witness  (Clark)  that  in  the  afternoon  of  April 
3d  he  saw,  upon  a  Market  street  car,  Blanche  Lauiont,  with 


!ii'f  ■;! 


PEOPLE  V.  DURRANT. 


635 


a  yotinj^  man,  not  tlie  defendant.  Clark  was  in  one  of  the 
piistcrn  states  during  the  trial,  and  his  deposition  was  there 
taicen.  It  was  to  the  effect  that  ho  saw  Jilanche  I.ainont  and 
..  young  man,  not  answering  the  description  of  defendant, 
together  upon  a  car  upon  a  day  in  the  latter  part  of  i[arch  or 
the  first  part  of  April,  but  the  date  he  could  not  fix  with 
positiveness.  He  sai/l  that  he  believed  that  he  had  told  a 
lawyer  that  it  was  upon  April  3d,  but  that  subsequent  consider- 
ation had  convinced  him  that  he  was  mistaken  in  this.  There 
is  here  no  suggestion  of  undue  influence  or  intimidation. 

The  witness  Lenahan,  called  by  the  defendant,  testified,  from 
all  that  appears,  ])recisely  as  the  defense  expected. 

Mrs.  Monnier,  it  is  said,  was  expected  to  testify  that,  upon 
the  afternoon  of  April  3d,  she  saw  a  young  man  whom  she 
would  identify  as  defendant  enter  the  Emmanuel  Church 
alone;  that,  because  of  newspaper  publications  and  interviews 
with  her,  her  husband  became  afraid  that  his  business  would 
he  injured,  and,  between  fear  and  anger,  so  talked  with,  and 
influenced  his  wife,  "  that  she  became  uncertain  as  to  the 
tiino.''  This  declaration  is  made  upon  the  information  and 
hclief  of  defendant.  It  is  not  supported  or  corroborated. 
Even  the  source  of  affiant's  information  is  not  mentioned.  It 
does  not  appear  that  Mrs.  Monnier  was  not  at  all  times  within 
reach  of  process;  yet  no  attempt  was  made  to  introduce  her 
testimony.  This  showing  is  certainly  insufficient  to  call  for  a 
reversal  of  the  case. 

Upon  a  consideration  of  the  whole  case,  we  discern  no  error 
to  the  prejudice  of  any  of  the  substantial  rights  of  defendant; 
wherefore  the  judgment  and  order  appealed  from  are  affirmed. 

We  concur:  MoFarland,  J.;  Gakoutte,  J.;  IIaukison,  J.; 
Tkmi'i.k,  J.;  Van  Fmckt,  J. 

McFari.and,  J.  (concurring).  I  have  signed  the  opinion  of 
Mr.  Justice  Hknsii  a  w.and  thereby  concurred  in  his  opinion  and 
in  the  judgment  of  affirmance.  But  while  1  can  see  no  legal 
ground  for  a  reversal  of  the  judgment,  I  desire  to  say  that  the 
conviction  of  appellant  would  have  been  much  more  satisfac- 
tory if  he  had  been  tried  in  some  county  far  beyond  the  reach 
of  the  threatening  atmosphere  which  surrounded  him  at  the 
place  of  his  trial,  and  where  the  active  and  long-continued 
attempts  to  forestall  judicial  inquiry,  and  compel  a  hostile 


■!''■ 


; 


536 


AMERICAN  CRIMINAL  REPORTS. 


decision,  could  not  possibly  havo  had  much  force.  As  the 
case  stands,  it  is  somewhat  difficult  to  feel  sufficiently  assured 
that  outside  adverse  pressuve  did  not  have  some  insousilile 
influence.  But  whether  or  not  appellant  had  a  substantially 
fair  trial,  notwithstantimg  circumstances  which  certainly  nuule 
it  difficult  for  him  to  have  such  a  trial,  is  a  question  which 
addressed  itself,  in  the  first  instance,  to  the  presiding  jiul^e 
of  the  trial  court;  and  it  is  not  so  ap[)arent  that  he  abused 
his  discretion  in  determining  that  question  in  the  affirmative 
as  to  give  this  court  warrant  to  reverse  the  order  denying  a 
new  trial.  As  to  the  other  points  involved  in  the  appeal,  I 
am  clear  that  no  substantial  error  was  committed. 

Rehearing  denied.     Beatty,  C.  J.,  dissenting  from  the  order 
denying  a  rehearing. 


i 


J 


Pkople  v.  Durkant.     (Two  cases.    Cr.  308,  358,) 

(51  Pac.  R.  185.) 

Murder:    Continuance — Dincretion— Fixing  date  of  execution— Appeals- 
Stay  of  eaxcution. 

1.  Wher«  defendant,  for  delay  only,  objects  to  submittinf^  a  case  for  lioar- 

ing  befor^:  the  time  for  filing  briefs  has  e.\i)ired.  and  no  sulistaiitive 
right  of  defendant  would  be  prejudiced  by  thus  submitting  the  case,  tlie 
objection  is  witiiout  merit. 

2.  Where  defendant  had  two  attorneys,  and  they  were  notified  of  a  hearing 

to  be  had,  and  one  of  them  waa  absent,  it  was  not  error  to  refuse  a  con- 
tinuance of  the  hearing,  where  defendant  is  duly  represented  by  one  of 
lu8  counsel,  and  the  questions  desired  to  be  raised  by  the  absent  counsel 
have  been  finally  adjudicated  on  appeal. 

3.  Where  a  judgment  of  deatii  has  not  betm  executed  when  directed  to  be, 

and  defendant  luus  been  called  into  court  to  show  cause  why  anotlier 
date  for  execution  should  not  be  fixed,  it  is  not  error  for  the  court  to 
refuse  to  inquire  into  the  validity  of  the  judgment  by  which  defendant 
was  convicted,  nor  a  violation  of  the  Penal  Code,  as  amended  in  1H!)1. 
providing  for  the  fixing  of  a  date  for  the  execution  of  a  judgment  of 
death  after  the  date  originally  fixed  has  expired. 

4.  It  is  not  error,  in  fixing  punishment  for   murder,  to  direct,  as  a  i)art  of 

the  judgment,  that  defendant  be  kept  in  close  confinement  in  the  peni- 
tentiary until  the  day  set  for  the  execution. 

5.  W^hen  a  trial  court  refuses  a  certificate  of  probable  cause,  the  proper 

remedy  is  to  renew  the  api)lication  therefor  before  one  or  more  of  the 
justices  of  the  supreme  L;>urt. 

6.  An  order  tlxing  the  date  of  CAecution  is  an  order  made  after  final  judj;- 

luent,  alFecting  the  substantial  rights  of  defendant,  and  is  api)ealal)le. 


PEOPLE  V.  DURRANT. 


637 


7.  An  nppeal  from  an  order  fixing  tlie  time  for  execution  does  not  stay  tJie 

execution  without  a  certificate  of  probable  cause,  and  defendant  may 
be  executed  pending  the  appeal  wliere  such  certificate  is  not  secured. 

8.  In  making  an  application  for  a  certificate  of  probable  cause  to  the  su- 

piame  court,  it  is  ordinarily  essential  that  there  should  be  a  settled  bill 
of  exceptions  presented  to  the  court  before  the  certificate  will  be 
granted. 

9.  It  is  error  to  order  execution  of  defendant  at  a  date  within  the  time 

allowed  by  statute  for  an  appeal  from  the  order,  and  the  time  allowed 
for  preparing  and  settling  a  bill  of  exceptions,  preparatory  to  an  appli- 
cation to  the  supreme  court  for  a  certificate  of  probable  cause,  in  case 
such  certificate  should  be  refused  by  the  trial  court. 

10.  Where  an  order  is  made  fixing  the  time  of  execution  of  defendant  at  a 
date  which  rendera  the  preparation  and  presentation  of  a  bill  of  excep- 
tions to  the  supreme  court,  in  an  application  for  a  certificate  of  prob- 
able cause,  impossible,  the  order  is  void  on  its  face,  and  justifies  tiie 
issuance  of  a  certificate  without  a  bill  of  exceptions. 

Gakoutte,  J.,  dissenting. 

In  banc.  Appeal  from  Superior  Court,  City  and  County  of 
San  Francisco;  Hon.  George  H.  Bahrs,  Judge. 

W.  II.  T.  Durrant,  having  been  convicted  of  naurder,  pros- 
ecutes several  af.peals  from  several  orders  fixing  the  date  of 
execution.  The  People  moved  to  dismiss.  The  motion  and 
appeal  were  heard  together.  Motion  denied.  First  appeal 
affirmed.     Second  appeal  reversed. 

For  principal  case  see  page  499,  ante. 

Eugene  N.   Deuprey^   John  11.  DicTcinson  and  Louis  P. 
Boardmm,  for  appellant. 
Atturney-General  Fitzyerald,  for  the  People. 

Beaity,  C.  J.  Two  appeals  entitled  and  numbered  as  above 
are  pending  in  this  court.  Each  is  from  an  order  of  the  superior 
court  fixing  a  day  for  carrying  into  execution  a  sentence  of 
death.  The  case  is  this:  The  defendant  was  convicted  of 
murder  in  the  first  degree  by  a  verdict  involving  the  extreme 
penalty.  He  appealed  from  the  judgment  and  from  an  order 
denying  his  motion  for  a  new  trial,  but  the  judgment  and  that 
order  were  affirmed.  IIG  Cal.  179;  48  Pac.  75.  Upon  the 
going  down  of  tlie  remittitur  an  order  was  made  by  the  su])erior 
court  requiring  the  sherift'of  the  county  to  produce  the  body  of 
the  defendant  in  that  court  on  the  10th  day  of  April,  1897. 
On  that  day,  the  defendant  and  his  counsel  being  present  in 
court,  he  was  informed  by  the  court  of  the  previous  proceed- 


1  ,tV'  r  ^ 


Wl'ISi 


\W¥W 


!1  1 


53S 


AMERICAN  CRIMINAL  REPORTS. 


•Hi-    "t 


ings  in  the  cause,  and  aslced  to  state  any  legal  reasons  he  niijiht 
have  why  the  court  sliould  not  make  an  order  fixing  a  time  for 
carrying  into  execution  the  judgment  theretofore  pronounced 
against  him.  His  objections  having  been  heard  and  overruled 
an  order  was  made  directing  his  delivery  within  tot  '  v,  (q 
the  warden  of  the  state  prison  at  San  Quentin;  '  ,„u|  war- 
den keej)  him  in  close  confinement  in  said  ])rison  until  Fvidav 
tiie  11th  day  of  June,  on  which  day,  between  sunrise  and  noon, 
the  warden  was  commanded  to  execute  him  by  hanyii 
From  this  order  the  defendant  immediately  took  the  appeal 
first  above  entitled.  Tlie  transcript  of  the  record  was  filed  in 
this  court  on  May  the  8th,  but  that  was  too  late  to  admit  of  a 
submission  and  decision  of  tiie  cause,  under  the  rules  of  the 
court,  before  the  day  appointed  for  the  execution.  X-'iM-.n" 
the  people  nor  the  defendant  asked  for  an  order  to  expedite  the 
hearing,  but  the  defendant  applied  to  the  justices  for  a  certifi- 
cate of  })robable  cause  for  his  appeal,  which,  if  granted,  would 
have  had  the  effect  of  staying  the  execution.  Ko  justice  of  the 
court  was,  however,  willing  to  certify  that  there  was  any  prob- 
al)le  cause  for  the  api)eal,  and  the  execution  would  have  taken 
place  except  for  a  /uihdaft  corpus  proceeding  instituted  in  the 
Circuit  Court  of  the  United  States  in  behalf  of  the  defendiint. 
His  petition  for  a  writ  of  habeas  corpus  was  <lenied  Iiy  the 
circuit  court,  but  his  appeal  to  the  Supreme  Court  of  the  United 
States  was  allowed,  the  effect  of  which  was  to  stay  all  proceed- 
ings under  the  judgment  and  order  of  the  state  ;ourt.  Pend- 
ing the  proceedings  in  the  federal  coui'ts,  by  consent  of  all 
parties,  the  hearing  of  this  appeal  was  continued  from  term  to 
erm  until  it  was  finally  submitted  at  Sacramento  in  Novem- 
ber. Matters  being  in  this  ])osture,  and  the  announcement 
having  been  made  by  telegraj)!!  that  the  Supreme  Court  of  the 
United  States  had  dismissed  the  defendant's  appeal  in  the 
huJteas  corpus  proceeding,  the  superior  court,  on  tiie  9tli  day 
of  November,  made  an  order  re(|uiring  the  sheriif  to  produce 
the  body  of  the  dercndant  in  court  on  the  following  day,  to 
enable  the  court  to  iiuptire  into  the  facts,  and  to  determine 
whether  any  legal  reasons  existed  why  the  judgment  of  death 
should  not  be  executed.  In  obedience  to  this  oi-dcT  tli(>  de- 
fendant was  brought  into  court  on  the  lOthday  of  Novemlier, 
and  in  the  presence  of  his  counsel  again  informed  of  the 
pi'ovi<jiis    proceedings  in  the  cause,  and   re(]uired   to  state 


,11  W'  ^*._ 


PEOPLE  V.  DURRANT. 


639 


any  legal  reason    he  might  have  why  a  date  should  not 
be  fixed  for  his  execution.     In  response  to  this  demand,  the 
defendant  offered  in  evidence  certified  copies  of  the  proceedings 
in  the  circuit  court   upon  his  application  for  a  writ  of  haheaa 
Gorjnts,  from  which   it  clearly  appeared  that  his  appeal  to  the 
supreme  court  had  been  regularly  allowed  and  perfected,  and 
that  no  remlttUur,  mandate  or  order  had  been  received  from 
the  supreme  court  showing  any  disposition  of  that  appeal.    To 
this  showing  by  the  defendant  no  counter-showing  whatever 
was  made  on  the  part  of  the  people.     The  defendant,  by  his 
counsel,  thereupon  objected  to  any  further  action  by  the  court 
for  want  of  jurisdiction — First,  by  reason  of  the  pendency  of 
the  appeal  in  the  haheas  corpus  proceeding  in  tiie  Supreme 
Court  of  the  United  States;  and,  second,  by  reason  of  the  appeal 
pending  in  this  court  from  the  order  of  April  10,  1897.    The 
defendant  also  made  other  objections,  which  need  not  be  stated 
here.    All  these  objections  were  overruled,  and  the  court,  on 
the  10th  day  of  November,  made  an  order  directing  the  execu- 
tion of  the  defendant  on  the  12th  of  November,  between  sun- 
rise and  noon.     From  this  order  the  defendant  immediately 
appealed,  but  his  bill  of  exceptions  was  not  settled  before  the 
ISth,  perhaps  not  before  the  22d  of  November,  /'.  e.,  from  six 
to  ten  days  after  the  time  when  the  order  commanded  his 
execution.      In  the  meantime,  however,  the  supreme  court 
being  in  session  at  Sacramento,  counsel   for  defendant  pro- 
ceeded to  that  place,  and  on  the  afternoon  of  the  11th  day  of 
November  laid   before  the  justices  a  copy  of  the  order  of 
Noveml)er  10th,  and  of  some  of  the  proceedings  in  the  superior 
court,  certified  by  the  county  clerk,  upon  which  he  petitioned 
for  a  certificate  of  probable  cause  for  his  appeal,  which  was 
immediately  granted  by  the  concurrence  of  six  out  of  the  seven 
justices,  and  certified  to  the  warden  of  San  (Juentin  in  time  to 
prevent  the  execution.     A  transcrij)!  of  the  record  on  this 
appeal — which  is  the  second  above  entitled — was  filed  in  this 
court  on  December  2d.     On  December  Oth  the  attorney-gen- 
eral, upon  notice  to  counsel  for  defendant,  moved  to  dismiss 
both  ap})eals  uj)on  the  ground  that  the  days,  respectively, 
fixed  by  the  orders  appealed  from  for  carrying  the  sentence  of 
death  into  execution  having  passed,  the  orders  were  no  longer 
of  any  force,  and  the  questions  involved  were  mere  moot  (pies- 
tions,  not  calling  for  further  consideration  by  the  court.     But 


n 


tl 


f 


640 


AMERICAN  CRIMINAL  REPORTS. 


the  court  being  of  the  opinion  that  the  appeals  ought  not  to 
bo  dismissed  {l^eople  v.  2lcNuUi/^  95  Cal.  504,  30  Pac.  i)03) 
and  that  there \vere  some  im[)ortant  points  of  practice  involved 
which  ought  to  be  settled  by  a  speedy  decision,  intimated  tliat 
opinion  from  the  bench,  whereupon  the  attorney-general 
offered  to  submit  the  second  api)eal  (the  first,  as  stated  above 
was  submitted  in  November)  upon  a  confession  of  error  in  the 
order  appealed  from  and  asked  an  early  decision  in  both  cases. 
Counsel  for  appellant, notwithstanding  the  confession  of  error 
Avhich  necessarily  involved  the  granting  of  all  the  relief  which 
they  seek  by  their  appeal,  viz.,  the  reversal  of  the  order 
appealed  from,  objected  to  the  submission  of  the  second  appeal, 
contending  that  under  the  rules  of  the  court  the  case  must  go 
upon  the  calendar  after  the  regular  time  for  filing  briefs,  and 
be  orally  argued  before  the  court  prior  to  any  decision. 

This  objection  is  without  merit.  The  rules  for  making  up 
the  calendar  and  filing  briefs  are  designed  to  expedite,  not  to 
delay,  the  decision  of  causes,  and  are  framed  with  a  view  of 
giving  all  parties  ample  opportunit}'  to  be  heard  before  their 
causes  are  decided  against  them.  If  there  were  any  substan- 
tive right  of  appellant  to  be  prejudiced  b}'  an  immediate  sub- 
mission of  his  appeal,  his  objection  would  not  be  unreasonable; 
but  since  the  attorney-general  has  confessed  error,  and  con- 
ceded that  the  order  appealed  from  must  be  reversed,  and  since 
it  is  legally  impossible  that  the  ai)pellant  can  ever  have  any 
other  or  greater  relief  than  a  reversal  of  the  order,  it  is  mani- 
fest that  his  objection  is  interposed  only  for  the  ])urpose  of 
delay.  We  shall  therefore  consider  and  decide  both  appeals 
together. 

It  is  not  necessary  to  discuss  the  objections  raised  upon  the 
first  appeal  at  any  length,  but  they  will  be  briefly  noticed : 

First.  From  the  beginning  of  the  proceedings  in  the  su- 
perior court  the  defendant  had  the  assistance  of  two  meinljors 
of  the  bar  as  counsel,  E.  N.  Deuprey  and  J.  II.  Dickinson. 
During  a  portion  of  the  trial  Mr.  Deuprey  was  absent  on 
accountof  sickness.  On  the  10th  day  of  A  pril,  when  thedefond- 
ant  was  required  to  show  cause  Avhy  a  day  for  his  execution 
should  not  be  fixed,  Mr.  Dickinson  was  absent,  and  ]\[r.  Deu- 
prey moved  for  a  continuance  upon  that  ground.  It  was  shown 
that  Mr.  Dickinson  had  received  due  notice  of  the  time  and 
place  fixed  for  the  bearing  of  the  motion  of  the  people  to  lix 


PEOPLE  V.  DURE  ANT. 


641 


the  (late  o^*  execution.  His  absence,  under  the  circumstances, 
would  rot  have  made  the  granting  of  a  continuance  compul- 
sory, e^'en  if  his  presence  could  have  been  of  any  advantage  to 
the  defendant.  But  it  could  not,  for  the  defendant  was  rep- 
resented by  his  other  counsel,  Mr.  Deuprey,  who  was  entirely 
competent,  notwithstanding  his  absence  during  a  portion  of  the 
trial,  to  represent  the  defendant  on  this  motion.  Ilis  plea  for 
delay  was  based  upon  the  suggestion  that  Gen.  Dickinson,  from 
his  greater  familiarity  with  the  proceedings,  was  better  able 
than  himself  to  present  some  matters  connected  with  the  trial 
and  affecting  ihe  validity  of  the  judgment.  But  since  the 
judgment  and  order  denying  a  new  trial  had  just  been  affirmed 
in  this  court,  and  a  rehearing  denied,  it  is  clear  that  the  valid- 
ity of  the  judgment  was  past  question  in  the  superior  court. 
The  court  did  not  err  in  refusing  a  continuance. 

Second.  It  is  next  contended  that  the  court  "  erred  in  refus- 
ing to  inquire  into  the  facts  of  the  record,  and  in  refusing  to 
have  proof  made  of  the  condition  of  the  record,  and  the  fact 
upon  which  the  court  might  act  in  the  premises  as  provided 
by  law."  I  state  this  objection  in  the  language  of  counsel. 
The  point  of  it,  as  I  gather  from  the  briefs,  is  that  the  court 
erred  in  not  calling  the  clerk  of  the  court,  and  taking  his  tes- 
timony under  oath  as  to  the  existence  and  identity  of  the 
record  of  the  judgment  in  the  case  of  People  v.  JJiirrant,  then 
remaining  in  that  court,  and  just  before  finally  affirmed  in  this 
court.  It  is  contended  that  the  failuie  to  do  this  was  a  viola- 
tioh  of  the  provisions  of  section  1227  of  the  Penal  Code  as 
amended  in  1891.  That  section  reads  as  follows :  "If  for  any 
reason  a  judgment  of  death  has  not  been  executed,  and  it 
remains  in  force,  the  court  in  which  the  conviction  is  had,  on 
the  application  of  the  district  attorney  of  the  county  in  which 
the  conviction  is  had,  must  order  the  defendant  to  be  brought 
before  it,  or  if  he  is  at  large,  a  warrant  for  apprehension  may 
be  issued.  Upon  the  defendant  being  brouglii  before  the 
court  it  must  inquire  into  the  facts,  and  if  no  legal  reasons 
exist  against  the  execution  of  the  judgment,  must  make  an 
order  that  the  warden  of  the  state  prison  to  whom  the  sheriff 
is  directed  to  deliver  the  defendant  shall  execute  the  judgment 
at  a  specified  time.  The  warden  must  execute  the  judgment 
accordingly."  The  facts  which  this  section  requires  the  court 
to  inquire  into,  relate  exclusively  to  the  question  whether 


.  1 

■r 

':| 

^' 

•; 

fr             ^ 

i 

r 

542 


AMERICAN  CRIMINAL  REPORTS. 


'f?- 


there  are  any  le;^al  reasons  against  the  execution  of  the  jiulf 
meut,  as,  lor  instance,  a  pardon  or  commutation  of  sentence 
by  the  executive.  Of  the  existence  of  the  judgment  and  its 
legal  eflfect  the  court  takes  judicial  notice.  The  identity  of 
the  defendant  with  the  prisoner  before  the  court  might,  under 
conceivable  circumstances,  become  a  question  of  fact;  but  no 
such  question  arose  in  this  case,  nor  any  other  as  to  Avhich  tlie 
court  was  bound  to  take  testimony.  The  judgment  was  within 
the  judicial  knowledge  of  the  court,  and  the  prisoner  was 
before  the  court,  and  the  burden  Avas  on  him  to  show,  if  he 
could,  that  any  legal  cause  existed  against  executing  the 
judgment.     The  court  did  not  err  in  this  matter. 

Third.  It  is  contended  that  not  only  the  order  of  April  10, 
1897,  but  the  original  judgment  also  are  void,  because  each 
contained  an  explicit  direction  that  the  defendant  should  be 
kept  in  close  confinement  at  San  Quentin  by  the  warden  of 
that  prison  from  the  time  of  his  delivery  thereat  until  his 
execution.  This  was  a  question  involved  in  the  original 
appeal,  and  so  far  as  the  judgment  is  concerned,  was  thereby 
concluded.  However,  if  the  objection  possessed  any  merit,  it 
might  be  pressed — as  it  is — against  the  order  of  April  loth. 
But  it  has  no  merit.  It  may  be  true  that  a  direction  to  keep 
the  defendant  in  close  confinement  has  no  proper  place  in  the 
judgment,  but  if  so,  it  is  simply  superfluous  and  harmless.  In 
the  absence  of  such  a  direction,  it  would  be  the  duty  of  the 
warden,  under  the  statute,  to  keep  the  prisoner  closely  con- 
fined in  the  designated  prison.  Pen.  Code,  §§  1217-1227. 
Close  confinement  does  not  mean  solitary  confinement  in  the 
technical  sense  of  that  expression,  but  only  secure  confinement 
Avithin  the  prison  walls.  Nor  is  the  order  or  judgment  void 
because  it  imposes  a  double  punishment.  It  is  conceded  that 
imprisonment  in  the  penitentiary  ponding  execution  does  add 
something  to  the  punisliment  prescribed  by  the  law  of  the 
state  for  the  crime  of  murder  prior  to  the  amendments  of  ISOl. 
It  was  so  held  in  both  of  the  opinions  delivered  by  this  court 
sitting  in  banc  in  the  McNulty  case  {People  v.  JA'.Vv/////,  (Cal.) 

28  Pac.  81(>;  People  v.  JUcJVidti/,  do  Cal.  427;  20  Pac.  51)7,  and 

29  Pac.  CI),  which  was  decided  upon  the  controlling  authority 
of  Medley,  Petitioner,  134  U.  S.  K50;  10  Sup.  Ct.  384.  And  for 
this  reason  only  it  was  held  in  the  first  decision  (reported  in 
2S  Pac.  810),  that  the  law,  being  made  applicable  by  its  terms 


PEOPLE  V.  DURRANI. 


543 


to  homiciclos  committed  before  as  well  as  after  its  passaf^e,  was 
ex  pod  f ado  and  void.  The  second  opinion  (reported  in  93 
Cal.  127;  29  Pac.  61),  retracted  nothing  that  was  decided  on 
this  point  in  the  first,  but  the  law  was  held  constitutional 
because  after  the  first  decision  a  general  saving  clause  in  the 
Political  Code  was  brought  to  our  attention  which  confined  its 
application  to  offenses  committed  subsecpient  to  its  passage, 
leaving  prior  offenses  to  be  governed  by  the  old  law.  It  is 
therefore  a  point  settled,  so  far  as  the  deliberate  opinion  of 
this  court  can  settle  it,  that  imprisonment  in  the  penitentiary 
pending  execution  is  a  distinct  part  of  the  punishment  for 
murder  prescribed  by  our  law.  But  the  law  has  nevertheless 
been  held  valid  as  to  all  murders  committed  since  its  enact- 
ment. The  only  objection  ever  made  to  it  heretofore  was  that 
it  was  ex  post  facto.  Freed  of  that  objection  by  the  construc- 
tion it  received  in  the  McNulty  case,  it  has  been  hivl.erto 
supposed  to  be  unobjectionablie,  and  has  been  enforced  in 
numerous  instances.  There  is  no  restriction  upon  the  power 
of  tlie  legislature  to  prescribe  double,  treble  or  any  number  of 
punishments  for  an  offense,  except  that  they  must  not  be  cruel 
and  unusual,  and  must  not  be  applied  ex  pod  facto.  There  is 
nothing  cruel  or  unusual  in  close  confinement  in  the  peniten- 
tiary, and  as  to  this  case  there  is  no  pretense  that  the  law  is 
ex  post  facto. 

Fourth.  The  court  did  not  err  in  refusing  a  certificate  of 
probable  cause,  and  if  it  had  done  so,  the  remedy  is  not  by 
api)eal,  but  by  renewing  the  application  before  a  justice  or 
justices  of  this  court,  which  was  the  course  actually  taken, 
with  the  result  above  stated. 

This  disposes  of  all  the  points  involved  in  the  first  appeal, 
and  shows  that  the  certificate  of  probable  cause  was  properly 
denied,  and  that  the  order  should  stand  alfinned. 

In  tlie  second  appeal  the  conf«>ssion  of  error  renders  it  unne- 
(vssMt'y  to  discuss  the  points  to  be  ruled  in  defendant's  favor, 
and  iuipropov,  perhaps,  to  discuss  any  which  miirht  have  been 
ruh'd  against  him.  Our  reasons  for  reversing  the  order  were, 
we  thought,  sut!lciontly  stated  in  the  opinion  filed  November 
11,  1897,  setting  forth  the  grounds  upon  which  we  granted  the 
certificate  of  probable  cause.  50  Pac.  1070.  But  it  seems  that 
upon  one  point  wo  failed  to  make  ourselves  entirely  clear. 
We  said  that  an  order  fixing  the  date  of  defendant's  execution 


5U 


AMERICAN  CRIMINAL  REPORTS. 


within  the  time  allowed  hira  by  statute  to  present  his  bill  of 
exceptions  was  a  violation  of  his  rights  and  a  gross  abuse  of 
discretion.  We  did  not  have  time  in  making  that  order  to 
elaborate  the  proposition  stated,  and,  since  the  point  of  ])rac- 
tice  is  important,  we  take  the  present  occasion  to  make  it 
plainer  if  we  can.  An  order  fixing  the  date  of  execution  is 
"an  order  made  after  final  judgment  affecting  the  substantial 
rights  of  the  defendant,"  and  as  such  is  appealable.  Pen.  Code 
Sec.  1237,  subd.  3;  Peojde  v.  Spragxie^  54  Cal.  92;  People  v. 
McNulty,  95  Cal.  594;  30  Pac.  9G3.  But  the  appeal  does  not 
stay  the  execution  without  a  certificate  of  probable  cause 
{People  V.  McNalty,  supra),  and  therefore  the  defendant  may 
be  executed  pending  his  appeal  if  he  fails  to  secure  such  certifi- 
cate. This  being  so,  it  is  of  vital  importance  that  the  defend- 
ant should  not  be  deprived  of  the  means  provided  by  the  statute 
for  obtaining  a  stay.  Among  those  means  is  an  application 
to  the  justices  of  the  supreme  court  in  case  the  certificate  is 
refused  by  the  judge  of  the  superior  court.  Pen.  Code,  Sec. 
12i3;  in  Pe  Adams,  81  Cal.  105;  22  Pac.  547.  In  order  to 
make  the  application  to  a  justice  of  the  supreme  court,  it  is 
ordinarily  essential  that  there  should  be  a  settled  bill  of  excep- 
tions, for  by  no  other  means  can  a  judge  who  did  not  conduct 
the  proceeding  eventuating  in  the  order  appealed  from  know 
whether  there  are  grounds  for  the  appeal  or  not.  The  defend- 
ant, then,  being  by  law  entitled  to  his  appeal,  and  entitled  to 
a  stay  of  proceedings  pending  his  appeal,. if  any  justice  of  the 
supreme  court  will  grant  him  a  certificate  of  probable  cause 
and  a  settled  bill  of  exceptions  being  in  most  cases  an  essential 
prerequisite  to  his  application  to  the  justices  of  the  supreme 
court,  to  deprive  him  of  any  opportunity  of  getting  a  bill  of 
exceptions  before  the  justices  of  the  su{)reme  court  is  to 
deprive  him  of  his  plain  legal  right  in  a  matter  of  the  highest 
moment,  and  if  that  is  not  error  it  would  be  difiicult  to  say 
what  error  consists  in.  In  this  case  the  defendant  was  not 
only  deprived  of  the  ten  days'  time  which  the  statute  gives 
him  to  present  his  bill  of  exceptions,  and  of  the  further  reason- 
able time  necessary  for  its  settlement  and  presentation  to  the 
justices  of  the  supreme  court,  but  he  was  deprived  absolutely 
of  any  opportunity  to  go  before  that  court  with  any  properly 
authenticated  record  of  the  proceedings.  The  justices  oi  the 
supreme  court  being  at  Sacramento,  if  but  a  single  day  had 


PEOPLE  V,  DURRANT. 


545 


been  taken  to  settle  the  bill  of  exceptions  and  furnish  a  certi- 
fied copy  it  would  have  been  impossible  to  have  presented  the 
record  to  the  justices,  obtained  the  order,  and  made  regular 
service  on  the  warden  before  the  hour  of  execution  had  passed. 
This  made  the  order  erroneous  upon  its  face,  without  the  aid 
of  a  bill  of  exceptions,  and  justified  the  issuance  of  the  certifi- 
cate of  probable  cause,  regardless  of  the  other  point  discussed 
in  our  opinion,  which  was  not  and  could  not  be  brought  regu- 
larly before  us. 

It  has  been  suggested  that  the  action  of  some  of  the  justices 
in  refusing  the  petition  of  Ebanks  for  a  certificate  of  probable 
cause  was  inconsistent  with  these  views.  It  is  true  that  Ebanks 
was  ordered  to  be  executed  in  eight  days  from  the  date  of  the 
order,  which  was  therefore  erroneous;  but  a  bill  of  exceptions 
was  promptly  presented  and  settled  and  certified  by  the  judge 
of  the  superior  court  on  the  day  following  the  order,  so  that 
when  the  petition  for  a  certificate  of  probable  cause  was  pre- 
sented it  was  supported  by  a  duly  authenticated  copy  of  the 
record  which  showed  that  the  defendant  had  been  deprived  of 
no  legal  right  except  the  full  time  allowed  by  the  statute  for 
presenting  his  bill  of  exceptions,  and  that  error  he  had  cured 
by  his  own  act.  There  was  therefore  no  prejudice  in  the  error 
and  no  ground  for  a  reversal. 

The  motions  to  dismiss  are  denied.  The  order  in  case  No. 
308  is  attirmed.  The  order  in  case  No.  358  is  reversed,  and 
the  cause  remanded  to  the  superior  court,  with  directions  to 
proceed  according  to  law.  It  is  further  ordered  that  the 
remittiturs  issue  forthwith. 


We  concur: 
Harrison,  J. 


IIenshaw,   J.;  Temple,  J.;  McFarland,   J.; 


'^{ .    t-''^ 


Garouttb,  J.  (concurring).  The  attorney-general  having 
confessed  error  in  the  second  appeal,  and  there  being  no  merit 
whatever  in  the  first  appeal,  I  concur  in  the  judgment  that  the 
first  order  appealed  from  be  affirmed,  and  that  the  second 
order  appealed  from  be  reversed. 

Garoutte,  J.  (dissenting).    There  are  two  appeals  pending 
before  this  court  from  orders  made  by  the  trial  judge  fixing 
the  day  for  the  execution  of  Theodore  Durrant.    The  particular 
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AMERICAN  CRIMINAL  REPORTS. 


day  fixed  for  the  execution  in  each  order  lias  long  since  gone 
by.  The  attorney-general  now  moves  this  court  to  dismiss 
those  appeals  upon  the  ground  that  the  orders  from  which 
they  were  taken  have  ceased  to  have  any  force  and  effect 
whatever;  that  the  questions  raised  thereby  are  no  longer  liv- 
ing questions;  and  that  any  decision  rendered  upon  them  could 
not  possibly  affect  the  rights  of  the  defendant.  In  other  words 
it  is  insisted  that  by  the  mere  lapse  of  time  the  ap))t'uls  pre- 
sent nothing  but  moot  questions.  This  position  of  the  attor- 
ney-general is  eminently  sound,  and  the  appeals  should  be 
dismissed.  Their  decision  upon  the  merits  could  do  neither 
the  defendant  nor  the  people  any  possible  good,  and,  under 
such  circumstances,  our  time  should  be  devoted  to  matters 
more  substantial  and  material.  In  the  JlcNulty  Case,  95  Cal. 
694,  30  Pac,  5)03,  the  court  refused  to  dismiss  an  appeal  from 
an  order  similar  to  those  here  involved,  but  there  the  day  fixed 
for  the  execution  had  not  expired  when  the  motion  was  made. 
Hence  that  case  has  no  bearing  here.  Some  question  is  made 
by  appellant  upon  these  appeals  to  the  effect  that  the  orders 
were  erroneous  because  they  provided  for  close  confinement  of 
the  defendant  by  the  warden  until  the  day  of  the  execution. 
But  this  contention  has  no  force  now,  for  the  reason  that 
such  period  of  close  confinement  ceased  when  the  day  of  exe- 
cution passed  by.  So  that  portion  of  these  orders  is  doing 
the  defendant  no  injury,  even  conceding  it  erroneous.  lie  has 
served  his  full  time  of  close  confinement  under  these  orders, 
rightfully  or  wrongfully,  and  a  decision  of  these  appeals  would 
in  no  way  affect  the  matter.  The  case  stands  exactly  as 
though  a  party  should  serve  a  sentence  of  100  days  in  jail,  and 
afterward  appeal  from  the  judgment  of  conviction.  The  court 
would  refuse  to  hear  such  an  appeal  upon  the  ground  that 
there  was  no  live  material  issue  before  it.  The  forcfroiner 
principles  of  law  are  fully  supported  by  numerous  decisions  of 
this  court,  and  I  rest  the  matter  with  a  single  citation.  In 
Foster  v.  Smith,  115  Cal.  611, 47  Pac.  591,  the  syllabus  correctly 
declares  the  principle  of  the  decision  as  follows :  "  Where  a 
temporary  injunction  was  granted  to  restrain  a  stockholder 
from  voting  at  an  election  of  the  directors  of  a  corporation, 
*  *  *  and  such  injunction  was  dissolved  prior  to  the  elec- 
tion, an  appeal  taken  from  the  order  dissolving  the  injunction 
aiter  the  election  had  been  held  raises  only  an  abstract  ques- 


BILVM  V.  UNITED  STATES. 


647 


tioii  and  will  be  dismissed."  In  the  body  of  the  opinion  it  is 
said:  " It  thus  appears  that  the  parties  to  the  litigation  have 
no  rights  which  can  be  affected  by  a  reversal  of  the  order,  and 
that  the  correctness  of  the  order  has  become  merely  an  abstract 
question."  And,  again :  "  If  the  order  should  be  reversed, 
the  Superior  Court  would  have  no  function  to  perform  in  con- 
sequence of  such  reversal."  Upon  sound  reason  the  same 
principle  necessarily  applies  to  criminal  cases.  I  see  no  mate- 
rial and  substantial  purpose  to  be  subserved  by  a  dismissal  of 
these  api)eals.  As  the  case  now  stands,  there  is  no  legal  reason, 
to  my  knowledge,  why  the  trial  court  should  not  take  steps 
to  enforce  its  judgment.  Yet  such  relief  is  asked  by  the  attor- 
ney-general, and  I  see  no  possible  objection  to  granting  it.  I 
dissent  from  the  order  refusing  to  dismiss  the  appeals. 


Bram  v.  United  States. 


(  i 


(18  Sup.  Ct.  E.  183.) 


Murder  :    Evidence— Confessions  —Statements  to  police  officer— Indictment 
—AjfflrmatioH  by  grand  juror— Circumstantial  evidence— Expert  evidence. 

1.  Objections  and  exc eptionn  taken  both  when  a  witness  is  offered  to  prove 

a  confession,  nnd  also  after  he  has  been  examined  as  to  the  circum- 
stances under  which  the  confession  was  made,  are  sufficient  to  raise  the 
question  in  the  Appellate  Court,  though  the  objection  is  not  renewed 
after  the  witness  has  testified  to  the  confession. 

2.  In  determining  whether  the  proper  foundation  was  laid  for  the  admis- 

sion of  evidence  offered  as  a  confession,  the  reviewing  court  is  not  con- 
cerned as  to  how  far  the  evidence  tends  to  prove  guilt.  If  illegally 
admitted,  reversible  error  results,  since  the  prosecution,  after  securing 
the  admission  of  evidence  as  a  confession,  will  not  be  heard  to  assert 
that  it  does  not  tend  to  prove  guilt. 

8.  Whenever  a  question  arises  in  the  federal  courts  as  to  whether  a  confes- 
sion is  incompetent  because  not  voluntary,  the  issue  is  controlled  by 
the  declaration  in  the  fifth  amendment  to  the  constitution  that  no  per- 
son "  shall  be  compelled  in  any  criminal  case  to  be  a  witness  against 
himself;"  this  being  the  constitutional  embodiment  of  the  doctrine  of 
the  inadmissibility  of  involuntary  confessions, 

4.  To  render  a  statement  offered  as  a  confession  admissible,  the  rule  is  not 
that  the  proof  must  establish  that  the  particular  communications  con- 
tained in  the  statement  were  voluntarily  made,  but  it  mnst  establish 
that  the 'making  of  the  statement  was  voluntary;  that  is  to  say, 


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AMERICAN  CRIMINAL  REPORTS. 


that,  from  causes  which  the  law  treats  as  legally  sufficient  to  en;?ender 
in  the  mind  of  the  accused  hope  or  fear  in  respect  to  the  crime  cliarged, 
he  was  not  involuntarily  impelled  to  make  a  statement  when,  but  for 
the  improper  influence,  he  would  have  remained  silent. 

5.  The  mere  fact  that  a  confession  is  made  to  a  police  officer  while  the 

accused  is  under  arrest,  in  or  out  of  prison,  or  is  drawn  out  by  his  ques- 
tions, does  not  necessarily  render  the  confession  involuntary;  but,  as 
one  of  the  circumstances,  such  imprisonment  or  interrogation  may  be 
taken  into  account  in  determining  whether  or  not  the  statement  was 
voluntary. 

6.  Statements  offered  as  a  confession  of  murder  held  inadmissible  where  it 

appeared  that  they  were  made  to  a  police  officer,  in  the  latter's  office, 
no  other  persons  being  present,  after  the  prisoner  had  been  stripped  of 
his  clothing,  and  after  the  officer  had  said  to  him  that  his  co-suapect 
had  made  a  statement  that  he  saw  him  commit  the  deed;  that  the  offi- 
cer was  satisfied  that  the  prisoner  had  killed  the  deceased;  tliat  it  was 
thought  that  he  could  not  have  done  it  alone,  and,  if  he  had  an  accom- 
plice, he  should  say  so,  "  and  not  have  the  blame  of  this  horrible  crime 
on  your  own  shoulders." 

7.  An  objection  that  an  indictment  recited  that  it  was  presented  "  upon  the 

oath  "  of  the  grand  juroiB,  when  hi  fact  it  was  presented  upon  the  oath 
of  all  but  one,  who  affirmed  instead  of  making  oath,  is  a  merely  formal 
defect,  without  prejudice,  which  is  cured  by  the  orovisions  of  Rev. 
Stat.  §  1025. 

8.  An  objection  that  neither  in  the  indictment  nor  in  the  proof  at  the  hear- 

ing of  pleas  in  abatement  did  it  affirmatively  appear  that  a  grand  juror, 
who  was  permitted  to  affirm  instead  of  making  oath,  had  conscientious 
scruples  against  taking  an  oath,  is  without  merit,  in  vie  r  of  the  cura- 
tive provisions  of  Rev.  Stat.  §  1025,  and  in  view  of  the  fact  that  the 
mode  of  ascertaining  the  existence  or  non-existence  of  such  scruples  is 
committed  to  the  discretion  of  the  officer  who  affirmed  the  juror. 

9.  Where  the  evidence  is  purely  circumstantial,  it  is  proper  for  the  prose- 

cution to  show,  as  a  circumstance  in  the  case,  the  fact  that  another 
person,  who  was  in  the  vicinity  at  the  time  of  the  killing,  could  not  have 
committed  the  crime.  The  fact  that  such  testimony  might  operate 
indirectly  to  fortify  the  credit  of  such  person  as  a  witness  could  not 
affect  its  admissibility. 

10.  A  question  asked  of  a  medical  expert  as  to  whether,  in  his  opinion,  a 
man  standing  at  the  hip  of  a  recumbent  person,  and  striking  blows  on 
his  head  and  forehead  with  an  ax,  would  necessarily  be  spattered  or 
covered  with  blood,  held  to  have  been  properly  admitted;  the  assumed 
state  of  facts  being  warranted  by  the  proofs. 

Mr.  Chief  Justice  Fuller,  Mr.  Justice  Brewer,  and  Mr. 
Justice  Brown,  dissenting. 

In  error  to  the  Circuit  Court  of  the  United  States  for  the 
District  of  Massachusetts. 

Asa  P.  French  and  James  K  Cotter,  for  plaintiff  in  error. 
Assistant  Attorney-General  Boyd,  for  the  United  States. 


.v 


BRAM  V.  UNITED  STATES. 


549 


Mr.  Justice  White  delivered  the  opinion  of  the  court. 

This  writ  of  error  is  prosecuted  to  a  verdict  and  sentence 
thereon,  by  which  the  plaintiff  was  found  guilty  of  murder, 
and  condemned  to  suffer  death.  The  homicide  was  committed 
on  board  the  American  ship  Herbert  Fuller,  while  on  the  high 
seas,  bound  from  Boston  to  a  port  in  South  America.  The 
accused  was  the  first  officer  of  the  ship,  and  the  deceased,  of 
whose  murder  he  was  convicted,  was  the  master  of  the  vessel. 
The  bill  of  exceptions,  after  stating  the  sailing  of  the  vessel 
from  Boston  on  the  2d  of  July,  1S96,  with  a  cargo  of  lumber, 
gives  a  general  summary  of  the  facts  leading  up  to  and  sur- 
rounding the  homicide,  as  follows : 

•'  She  had  on  board  a  captain,  Charles  I.  I^ash;  Bram,  the 
deff  idant;  a  second  mate,  August  W.  Blomberg;  a  steward, 
ana  six  seamen;  also  the  captain's  wife,  Laura  A.  Nash,  and 
one  passenger,  Lester  H.  Monks. 

"  The  vessel  proceeded  on  her  course  toward  her  port  of  des- 
tination until  the  night  between  July  13th  and  July  14th. 
On  that  night,  at  twelve  o'clock,  the  second  mate's  watch  was 
relieved  by  the  mate's  watch,  of  which  Bram,  the  defendant, 
was  the  officer  in  charge.  The  captain,  his  wife,  the  passenger, 
Monks,  and  the  first  mate  and  the  second  mate,  all  lived  in 
the  after  cabin,  occupying  separate  rooms.  *  ♦  »  The 
crew  and  the  steward  slept  forward  in  the  forward  house. 

"When  the  watch  was  changed  at  midnight,  Bram,  the 
defendant,  took  the  deck,  the  seamen  Loheac  and  Perdok  went 
forward  on  the  lookout,.and  Charles  Brown  (otherwise  called 
Justus  Leopold  Westerberg,  his  true  name)  took  the  wheel, 
where  it  was  his  duty  to  remain  till  two  o'clock,  at  about 
which  time  he  was  relieved  by  Loheac.  The  second  mate  went 
to  his  room,  and  the  seamen  of  his  watch  to  their  quarters  at 
twelve,  midnight,  and  there  was  no  evidence  that  any  of  them 
or  the  steward  appeared  again  until  daylight. 

"  The  passenger,  Monks,  who  occupied  a  room  on  the  star- 
board side  of  the  cabin,  between  the  chart  room  where  the 
captain  slept  and  the  room  on  the  forward  starboard  side  where 
Mrs.  Nash  slept,  with  doors  opening  from  the  passenger's  room 
into  both  the  chart  room  used  by  the  captain  as  his  room  and 
that  of  Mrs.  Nash,  was  aroused  not  far  from  two  o'clock  (the 
exact  time  is  not  known,  as  he  says)  by  a  scream,  and  by  another 
sound,  characterized  by  him  as  a  gurgling  sound.    He  arose, 


550 


AMERICAN  CRIMINAL  REPORTa 


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went  to  the  captain's  room,  and  found  the  captain's  cot  over- 
turned, and  the  captain  lying  on  the  floor  by  it.    He  spoke 
but  got  no  answer;  put  his  hand  on  the  captain's  body,  and 
found  it  damp  or  wet.    He  then  went  to  Mrs.  Nash's  room- 
did  not  see  her,  but  saw  dark  spots  on  her  bedding,  and  sus- 
pected something  wrong.    He  went  on  deck,  and  called  the 
mate,  the  defendant,  telling  him  the  captain  was  killed.    Both 
went  below,  took  down  the  lantern  hanging  in  the  main  cabin 
burning  dimly,  turned  it  up,  and  went  through  the  captain's 
room  to  the  passenger's  room,  and  the  passenger  there  put  on 
a  shirt  and  pantaloons.    They  then  both  returned  to  the  deck 
the  mate  on  the  way  stopping  a  brief  time  in  his  own  room. 
Bram  and  Monks  remained  talking  on  deck  till  about  daybreak 
when  the  steward  was  called,  and  told  what  had  happened. 
Up  to  this  time  no  call  had  been  made  for  the  second  mate 
nor  had  any  one  visited  his  room.    Later  it  was  found  that 
Captain  Nash,  his  wife  and  Blomberg,  the  second  mate,  were 
all  dead,  each  with  several  wounds  upon  the  head,  apparently 
given  with  a  sharp  instrument,  like  an  ax,  penetrating  the 
skull  and  into  the  substance  of  the  brain;  and  the  second  mate 
lying  on  his  back,  with  his  feet  crossed,  in  his  berth;  Mrs.  Nash 
in  her  bed,  in  her  room,  and  at  the  back  side  of  the  bed;  and 
Captain  Nash  in  his  room,  as  already  stated. 

"  The  whole  crew  was  called  at  or  about  daylight,  and  were 
informed  of  the  deaths. 

"  The  bodies  were  removed  from  the  cabin,  and  placed  in  the 
jolly  boat,  and  the  boat  was  towed  .astern  to  Halifax.  The 
cabin  was  then  locked,  Bram  taking  the  keys,  and  it  remained 
locked  till  the  vessel  reached  Halifax. 

"  At  first,  after  the  discovery  of  the  murders,  there  Avas 
some  hesitancy  as  to  where  the.  vessel  should  go.  At  the 
defendant's  suggestion,  she  was  headed  to  go  to  Cayenne,  in 
French  Guiana;  but  the  plan  was  changed,  and  she  steered 
for  Halifax,  Nova  Scotia,  where  she  arrived  July  21st,  and 
was  taken  possession  of  by  the  local  authorities,  at  the  instance 
of  the  consul  general  of  the  United  States. 

"  At  first,  after  the  discovery  of  the  murders,  Bram,  on 
whom  had  devolved  the  command  of  the  ship,  made  Brown 
chief  mate  and  Loheac  second  mate. 

"  No  blood  or  spots  of  blood  were  ever  discovered  on  the 
person  or  the  clothing  of  any  person  on  board,  nor  did  any- 
thing direct  suspicion  to  any  one. 


BEAM  V.  UNITED  STATES. 


661 


« In  a  day  or  two,  suspicion  having  been  excited  in  respect 
to  the  seaman  Brown,  the  crew,  under  the  supervision  of 
Bram,  seized  him,  he  not  resisting,  and  put  hira  in  irons.  All 
the  while  the  officers  and  seamen  remaining  on  deck.  Brara 
navio-ated  the  ship  until  Sunday  before  they  reached  Halifax; 
on  Tuesday,  and  after  the  land  of  Nova  Scotia  was  in  sight, 
when,  Brown  having  stated  to  his  shipmates,  or  some  of  them, 
that  he  saw  into  the  cabin  through  a  window  in  the  after- 
part  and  on  the  starboard  side  of  the  house,  and  saw  Brain, 
the  mate,  kill  the  captain.  In  consequence  of  this  statement  of 
Blown,  the  crew,  led  by  the  steward,  suddenly  overpowered 
the  mate,  and  put  him  in  irons,  he  making  no  resistance,  but 
declarino"  his  innocence.  Bram  and  Brown  were  both  carried 
into  Halifax  in  irons." 

The  bill  of  exceptions  further  states  that  when  the  ship 
arrived  at  Halifax,  the  accused  and  Brown  were  held  in  custody 
by  the  chief  of  police  at  that  place,  and  that,  while  in  such 
custody,  the  accused  was  taken  from  prison  to  the  office  of  a 
detective,  and  there  questioned,  under  circumstances  to  be 
hereafter  stated.  Subsequently  to  this  occurrence  at  Halifax, 
all  the  officers,  the  crew,  and  the  passenger  were  examined 
before  the  American  consul,  and  gave  their  statements,  whicti 
were  reduced  to  writing  and  sworn  to.  They  were  thereafter, 
at  the  request  of  the  American  consul,  sent  to  Boston,  where 
the  accused  was  indicted  for  the  murder  of  Nash,  the  captain, 
of  Mrs.  Nash,  and  the  second  mate,  Blomberg.  The  trial  and 
the  conviction  now  under  review  related  to  the  first  of  these 
charo-es.  The  errors  which  are  here  assigned  as  grounds  for 
reversal  are  more  than  sixty  in  number,  and  are  classified  by 
the  counsel  for  the  accused  as  follows :  (a)  questions  raised 
preliminary  to  the  trial;  (b)  questions  raised  during  the  trial; 
(c)  questions  raised  in  connection  with  two  motions  for  a  new 

trial. 

We  first  examine  the  error  relied  on  which  seems  to  us 
deserving  of  the  most  serious  consideration.  During  the  trial, 
a  detective,  by  whom  the  accused  was  questioned  while  at 
Halifax,  was  placed  upon  the  stand  as  a  witness  for  the  pros- 
ecution, for  the  purpose  of  testifying  to  the  conversation  had 
between  himself  and  the  accused  at  Halifax,  at  the  time  and 
place  already  stated.  What  took  place  between  the  accused 
and  the  detective  at  the  time  of  the  conversation,  and  what 


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552 


AMERICAN  CRIMINAL  REPORTS. 


occurred  when  the  witness  was  tendered  in  order  to  prove  the 
confession,  is  thus  stated  in  the  bill  of  exceptions: 

"Nicholas  Power,  of  Halifax,  called  by  the  government 
testified  that  he  was  connected  with  the  police  department  of 
Halifax,  and  had  been  for  thirty-two  years,  and  for  the  last 
fifteen  years  of  that  time  as  a  detective  officer;  that  after  the 
arrival  of  the  Herbert  Fuller  at  Halifax,  in  consequence  of  a 
conversation  with  Charles  Brown,  he  made  an  examination  of 
Branr,  the  defendant,  in  the  witness'  office,  in  the  city  hall  at 
Halifax,  when  no  one  was  present  besides  Bram  and  the  wit- 
ness. The  witness  testified  that  no  threats  were  made  in  anv 
wa3'^  to  Bram,  nor  any  inducements  held  out  to  him. 

"  The  witness  was  then  asked :  *  What  did  you  say  to  him 
and  he  to  you  V 

"  To  this  the  defendant's  counsel  objected.  The  defendant's 
counsel  was  permitted  to  cross-examine  the  witness  before  the 
court  ruled  upon  the  objection,  and  the  witness  stated  that 
the  conversation  took  place  in  his  office,  where  he  had  caused 
the  defendant,  Bram,  to  be  brought  by  a  police  officer;  that 
up  to  that  time  the  defendant  had  been  in  the  custody  of  the 
police  authorities  of  Halifax,  in  the  custody  of  the  superin- 
tendent of  police,  John  O'Sullivan;  that  the  witness  asked 
that  the  defendant  should  be  brought  to  his  office  for  the  pur- 
pose of  interviewing  him;  that  at  his  office  he  stripped  the 
defendant,  and  examined  his  clothing,  but  not  his  pockets;  that 
he  told  the  defendant  to  submit  to  an  examination,  and  that 
he  searched  him;  that  the  dei^  dant  was  then  in  custody,  and 
did  everything  the  witness  directed  him  to  do;  that  the  wit- 
ness was  then  a  police  officer,  acting  in  his  official  capacity; 
that  all  this  took  place  before  the  defendant  had  been  exam- 
ined before  the  United  States  consul;  and  that  the  witness  did 
not  know  that  the  local  authorities  had  at  that  time  taken  any 
action,  but  that  the  defendant  was  held  for  the  United  States 
— for  the  consul  general  of  the  United  States. 

"  The  witness  answered  questions  by  the  court  as  follows : 

" '  You  say  there  was  no  inducement  to  him  in  the  way  of 
promise  or  expectation  of  advantage  ? 

"  *A.    Not  any,  your  honor. 

«*Q.    Held  out? 

"  'A.    Not  any,  your  honor. 

" '  Q.    Nor  anything  said  in  the  v/ay  of  suggestion  to  him 


BRAM  V.  UNITED  STATES. 


553 


that  he  might  suirer  if  he  did  not — that  it  might  be  worse  for 

him? 

No,  sir;  not  any. 

So  far  as  you  were  concerned,  it  was  entirely  vol- 


untary  ? 
"'A. 


Voluntary,  indeed. 

No  influence  on  your  part  exerted  to  persuade  him 
one  way  or  the  other? 

»"A.    None  whatever,  sir;  none  whatever.' 

"The  defendant  then  renewed  his  objection  to  the  question 
what  conversation  had  taken  place  between  Brara  and  the 
witness,  for  the  following  reasons :  Th'at,  at  the  time,  the 
defendant  was  in  the  custody  of  the  chief  of  police  at  Halifax; 
that  the  witness,  in  an  otficial  capacity,  directed  the  police 
authorities  to  bring  the  defendant  as  a  prisoner  to  his  private 
office,  and  there  proceeded  to  take  extraordinary  liberties  with 
him.  He  stripped  him.  The  defendant  understood  that  he 
was  a  prisoner,  and  he  obeyed  every  order  and  direction  that 
the  witne'?s  gave.  Under  these  circumstances,  the  counsel 
submitted  that  no  statement  made  by  the  defendant  while  so 
held  in  custody,  and  his  rights  interfered  with  to  the  extent 
described,  was  a  free  and  voluntary  statement,  and  no  state- 
ment as  made  by  him  bearing  upon  this  issue  was  competent. 

"  The  objection  was  overruled,  and  the  defendant  excepted 
on  all  the  grounds  above  stated,  and  the  exceptions  were 
allowed. 

'*  The  witness  answered  as  follows : 

"'When  Mr.  Bram  came  into  my  office,  I  said  to  him: 
"  Bram,  we  are  trying  to  unravel  this  horrible  mystery."  I 
said :  "  Your  position  is  rather  an  awkward  one.  I  have  had 
Brown  in  this  office,  and  he  made  a  statement  that  he  saw  you 
do  the  murder."  He  said:  "He  could  not  have  seen  me. 
Where  was  he  ? "  I  said:  "  He  states  he  was  at  the  wheel." 
"  Well,"  he  said,  "  he  could  not  see  me  from  there."  I  said : 
"  Now,  look  he.e,  Bram,  I  am  satisfied  that  you  killed  the 
captain  from  all  I  have  heard  from  Mr.  Brown.  But,"  I  said 
"  some  of  U8  here  think  you  could  not  have  done  all  that  crime 
alone.  H  you  had  an  accomplice,  you  should  say  so,  and  not 
have  the  blame  of  this  horrible  crime  on  your  own  shoulders." 
He  said :    "  Well,  1  think,  and  many  others  on  board  the  ship 


H  ■ 


i 


■tf '  ■ 


-  r 


n^^yrm. 


664 


AMERICAN  CRIMINAL  REPORTS. 


think,  that  Brown  is  the  murderer;  ba'  I  don't  know  anything 
about  it."    He  was  rather  short  in  ais  replies. 

"  *  Q.    Anything  further  said  b}'  either  of  you  ? 

"  *A.    No;  there  was  nothing  further  said  on  that  occasion.' 

"The  direct  examination  of  this  witness  was  limited  to  the 
interview  between  the  witness  and  the  defendant,  Bram. 

"On  cross-examination  of  the  witness  Power,  he  testified 
that,  at  the  time  of  the  above-stated  examination,  he  took  pos- 
session of  a  pair  of  suspenders  belonging  to  the  defendant,  and 
kept  the  same  in  his  office  until  the  prisoners  were  cominn-  to 
Boston  (the  whole  crew  and  the  passengers  were  imprisoned  at 
Halifax,  and  sent  as  prisoners  to  Boston),  when  he  handed 
them  over  to  the  Halifax  superintendent  of  police,  and  they 
were  sent  to  Boston,  with  other  property  of  the  defendant. 

"  Defendant's  counsel,  upon  the  ground  of  showing  interest 
on  the  part  of  the  witness,  then  asked  :  '  What  other  articles 
belonging  to  the  defendant  did  you  take  possession  of  at  that 
time  ? ' 

"This  line  of  inquiry  was  objected  to  by  the  district 
attorne}',  on  the  ground  that  the  matter  was  not  opened  on 
the  direct  examination,  and  the  defendant  could  cr  11  the  ^vit- 
ness  as  part  of  his  case  if  he  saw  fit.  The  court  excluded  the 
inquiry,  ruling  that  it  was  not  proper  cross-examination,  and 
did  not  tend  to  show  interest,  and  the  defendant  duly  excepted, 
and  the  exception  was  allowed." 

The  contention  is  that  the  foregoing  conversation,  between 
the  detective  and  the  accused,  was  competent  only  as  a  con- 
fession by  him  made;  that  it  was  offered  as  such;  and  that  it 
was  erroneously  admitted,  as  it  was  not  shown  to  have  been 
voluntary.  The  question  thus  presented  was  manifestly  cov- 
ered by  the  exception  which  was  taken  at  the  trial.  When  it 
was  proposed  to  examine  the  detective  officer  as  to  the  con- 
versation had  by  him  with  the  accused,  objection  was  duly 
made.  The  court  thereupon  allowed  the  officer  to  be  exam- 
ined and  cross-examined  as  to  the  circumstances  attending  the 
conversation  which  it  was  proposed  to  offer  as  a  confession. 
When  this  examination  was  concluded,  the  accused  renewed 
his  objection,  and  his  exception  to  the  admissibility  of  the 
conversation  was  allowed,  and  regularly  noted.  The  witness 
then  proceeded  to  give  the  conversation.  To  say  that  under 
these  circumstances  the  objection  which  was  twice  presented 


BRAM  V.  UNITED  STATES. 


665 


and  regularly  allowed  should  have  been  ren(9wed  at  the  termi- 
nation of  the  testimony  of  the  witness  would  be  pushing  to  an 
unreasonable  length  the  salutary  rule  which  requires  that 
exceptions  be  taken  at  the  trial  to  rulings  which  are  considered 
erroneous,  and  the  legality  of  which  are  thereafter  to  be  ques- 
tioned on  errcr.  There  can  be  no  doubt  that  the  manner  in 
which  the  exception  was  allowed  and  notdd  fully  called  atten- 
tion to  the  fact  that  the  admission  of  the  conversation  was 
objected  to  because  it  was  not  voluntary,  and  the  overruling 
of  this  objection  is  the  matter  now  assigned  as  error  here. 
Indeed,  in  the  argument  at  bar  no  contention  was  made  as  to 
the  sufftoiency  and  regularity  of  the  exception.  It  is  manifest 
that  the  sole  ground  upon  which  the  proof  of  the  conversa- 
tion was  tendered  was  that  it  was  a  confession,  as  this  was  the 
only  conceivable  hypothesis  upon  which  it  could  have  been 
legally  admitted  to  the  jury.  It  is  also  clear  that,  in  deter- 
mining whether  the  proper  foundation  was  laid  for  its  admis- 
sion, we  are  not  concerned  with  how  far  the  confession  tended 
to  prove  guilt.  Having  been  offered  as  a  confession,  and  being 
admissible  only  because  of  that  fact,  a  consideration  of  the 
ratasure  of  proof  which  resulted  from  it  does  not  arise  in 
determining  its  admissibility.  If  found  to  have  been  illegally 
admitted,  reversible  error  will  rosult,  sintee  the  prosecution  can 
not,  on  the  one  hand,  offer  evidence  to  prove  guilt,  and  which 
by  the  very  offer  is  vouched  for  as  tending  to  that  end,  and  on 
the  other  hand,  for  the  purpose  of  avoiding  the  consequence  of 
the  ei*ror  caused  by  its  wrongful  admission,  be  heard  to  assert 
that  the  matter  offered  as  a  confession  was  not  prejudicial, 
because  it  did  not  tend  to  prove  guilt.  The  principle  on  the 
subject  is  thus  stated  in  a  note  to  section  219  of  Greenleaf  on 
Evidence  :  "  The  rule  excludes  not  only  direct  confessions, 
but  any  other  declaration  tending  to  implicate  the  prisoner  in 
the  crime  charged,  even  though,  in  terms,  it  is  an  accusation 
of  another  or  a  refusal  to  confess.  Rex  v.  Tyler,  1  Car.  &  P. 
129;  Rex  v.  Enoch,  5  Car.  &  P.  539.  See  further,  as  to  the  object 
of  the  rule.  Rex  v.  Court,  7  Car.  &  P.  486,  per  Littledale,  J.; 
People  V.  Ward,  15  Wend.  231."  Nor  from  the  fact  that  in 
Wihon  V.  U.  S.,  162  U.  S.  621,  mention  was  made  of  the  cir- 
cumstance that  the  statement  of  the  accused  was  a  mere 
denial  of  guilt,  accompanied  with  exculpatory  explanations, 
does  the  decision  in  that  case  conflict  with  the  principle  we 


i-^m 


:T 


'm¥>^ 


'^':'-.:':S  t| 


mh: 


'  </¥^  :■  i' 


556 


AMERICAN  CRIMINAL  REPORTS. 


have  just  stated.  '  The  ruling  there  made  tliat  error  to  the 
prejudice  of  the  accused  did  not  arise  from  the  admission  of 
the  statement  there  considered  was  based,  not  alone  upon  the 
nature  of  the  statement,  but  upon  '*  the  evidence  of  its  volun- 
tary character,  the  absence  of  any  threat,  compulsion,  or 
inducement,  or  assertion  or  indication  of  fear,  or  even  of  such 
influence  as  the  administration  of  an  oath  has  been  supposed 
to  exert."     162  U.  S.  624,  16  Sup.  Ct.  900. 

The  contradiction  involved  in  the  assertion  that  the  state- 
ment of  an  accused  tended  to  prove  guilt,  and  therefore  was 
admissible,  and  then,  after  procuring  its  admission,  claiming 
that  it  did  not  tend  to  prove  guilt,  and  could  not  therefore 
have  been  prejudicial,  has  been  well  stated  by  the  Supreme 
Court  of  North  Carolina.  {State  v.  liorie  [lS7C>]y  U  N.C. 
US): 

"But  the  state  says  this  was  a  denial  of  guilt,  and  not  a  con- 
fession. It  was  a  declaration  which  the  state  used  to  procure 
a  conviction;  and  it  is  not  for  the  state  to  say  the  declaration 
did  not  prejudice  the  prisoner's  case.  Why  introduce  it  at  all 
unless  it  was  to  lay  a  foundation  for  the  prosecution  ?  The 
use  which  was  made  of  the  prisoner's  statement  precludes  the 
state  from  saying  that  it  was  not  used  to  his  prejudice." 

In  criminal  trials,  in  the  courts  of  the  United  States,  wher- 
ever a  question  arises  whether  a  confession  is  incompetent 
because  not  voluntary,  the  issue  is  controlled  by  that  portion 
of  the  fifth  amendment  to  the  constitution  of  the  United  States 
commanding  that  no  person  "  shall  be  compelled  in  any  crim- 
inal case  to  be  a  witness  against  himself."  The  legal  principle 
by  which  the  admissibility  of  the  confession  of  an  accused  per- 
son is  to  be  determined  is  expressed  in  the  text  books. 

In  3  Russ.  Crimes  (6th  Ed.),  478,  it  is  stated  »s  follows: 

"  But  a  confession,  in  order  to  be  admissible,  must  be  free 
and  voluntary;  that  is,  must  not  be  extracted  by  any  sort  of 
threats  or  violence,  nor  obtained  by  any  direct  or  implied  ])rom- 
ises,  however  slight,  nor  by  the  exertion  of  any  improper  influ- 
ence. *  »  *  A  confession  can  never  be  received  in  evidence 
where  the  prisoner  has  been  influenced  by  any  threat  or  prom- 
ise; for  the  law  can  not  measure  the  force  of  the  influence 
used,  or  decide  upon  its  effect  upon  the  mind  of  the  prisoner, 
and  therefore  excludes  the  declaration  if  any  degree  of  influ- 
ence has  been  exerted." 


=^  -i; 


BEAM  t>.  UNITED  STATES. 


567 


And  this  summary  of  the  law  is  in  harmony  with  the  doc- 
trine as  expressed  by  other  writers,  although  the  form  in  which 
they  couch  its  statement  may  be  different.  1  Greenl.  Ev. 
(15th  Ed.),  §  219;  Whart.  Or.  Ev.  (0th  Ed.),  §  631;  2  Tayl.  Ev. 
(9th  Ed.),  §  872;  1  Bish.  New  Cr.  Proc,  §  1217,  par.  4. 

These  writers  but  express  the  result  of  a  multitude  of  Amer- 
ican and  English  cases,  which  will  be  found  collected  by  the 
authors  and  editors,  either  in  the  text  or  in  notes,  especially 
in  the  ninth  edition  of  Taylor,  second  volume,  tenth  chapter, 
and  the  American  notes  following  page  588,  where  a  very  full 
reference  is  made  to  decided  cases.  The  statement  of  the  rule 
is  also  in  entire  accord  with  the  decisions  of  this  court  on  the 
subject.  Ilopt  V.  Utah  (1883),  110  U.  S.  574;  4  Am.  Cr.  R. 
417;  Sparf  v.  U.  S.  (1895),  156  U.  S.  51,  55,  ante,  168;  Pierce 
V.  U.  S.  (1896),  160  U.  S.  355,  16  Sup.  Ct.  321;  and  WiUon  v. 
U.  S.  (1896),  162  U.  S.  613. 

A  brief  consideration  of  the  reasons  which  gave  rise  to  the 
adoption  of  the  fifth  amendment,  of  the  wrongs  which  it  was 
intended  to  prevent,  and  of  the  safeguards  rt'hich  it  was  its 
purpose  unalterably  to  secure,  will  make  it  clear  that  the  ge- 
neric language  of  the  amendment  was  but  a  crystallization  of 
the  doctrine  as  to  confessions,  well  settled  when  the  amend- 
ment was  adopted,  and  since  expressed  by  the  text  writers  and 
expounded  by  the  adjudications,  and  hence  that  the  statements 
on  the  subject  by  the  text  writers  and  adjudications  but  form- 
ulate the  conceptions  and  commands  of  the  amendment  itself. 
In  Boyd  v.  U.  S.,  116  U.  S.  616,  6  Sup.  Ct.  524,  attention  was 
called  to  the  intimate  relation  existing  between  the  provision 
of  the  fifth  amendment  securing  one  accused  against  being 
compelled  to  testify  against  himself,  and  those  of  the  fourth 
amendment  protecting  against  unreasonable  searches  and  seiz- 
ures; and  it  was  in  that  case  demr  -strated  that  both  of  these 
amendments  contemplated  perpetu.  ting,  in  their  full  efficacy, 
by  means  of  a  constitutional  provision,  principles  of  iiumanity 
and  civil  liberty  which  had  been  secured  in  the  mother  coun- 
try only  after  years  of  struggle,  so  as  to  implant  them  in  our 
institutions  in  the  fullness  of  their  integrity,  free  from  the  pos- 
sibilities of  future  legislative  change.  In  commenting  on  the 
same  subject  in  Brown  v.  Walker,  161  U.  S.  596,  16  Sup.  Ct, 
647,  the  court,  speaking  through  Mr.  Justice  Brown,  said : 

"The  maxim,  ^Nefnoteneturseipsum  accmare^  had  its  origin 


'5  Hi 


■;  2 


>'i} 


:-l 


i   L 


>'•; 


668 


AMERICAN  CRIMIMAL  REPORTS. 


in  a  protest  against  the  inquisitorial  and  manifestly  unjust 
methods  of  interrogating  accused  persons,  which  bus  long 
obtained  in  the  continental  S3'stem,  and,  until  tlio  expulsion  of 
the  Stuarts  from  the  British  throne  in  16SS,  and  the  erection  of 
additional  barriers  for  the  protection  of  the  people  against  the 
exercise  of  arbitrary  power,  was  not  uncommon  even  in  Eng. 
land.  While  the  admissions  or  confessions  of  the  prisoner 
when  voluntarily  and  freely  made,  have  always  ranked  high  in 
the  scale  of  incriminating  evidence,  if  an  accused  person  be 
asked  to  explain  his  apparent  connection  with  a  crime  under 
investigation,  the  case  with  which  the  questions  put  to  him 
may  assume  an  inquisitorial  character,  the  temptation  to  press 
the  witness  unduly,  to  browbeat  him  if  he  be  timid  or  reluct- 
ant, to  push  him  into  a  corner,  and  to  entrap  him  into  fatal 
contradictions,  which  is  so  painfully  evident  in  many  of  the 
earlier  state  trials,  notably  in  those  of  Sir  Nicholas  Throck- 
morton and  Udal,  the  Puritan  minister,  made  the  system  so 
odious  as  to  give  rise  to  a  demand  for  its  total  abolition.  The 
change  in  the  English  Criminal  Procedure  in  that  particular 
seems  to  be  founded  upon  no  statute  and  no  judicial  opinion, 
but  upon  a  general  and  silent  acquiescence  of  the  courts  in  a 
popular  demand.  But,  however  adopted,  it  has  become  firmly 
imbedded  in  English  as  well  as  in  American  jurisprudence.  So 
deeply  did  the  iniquities  of  the  ancient  system  impress  them- 
selves upon  the  minds  of  the  American  colonists  that  the 
states,  with  one  accord,  made  a  denial  of  the  right  to  question 
an  accused  person  a  part  of  their  fundamental  law;  so  that  a 
maxim,  which  in  England  was  a  mere  rule  of  evidence,  became 
clothed  in  this  country  with  the  impregnability  of  a  constitu- 
tional enactment." 

There  can  be  no  doubt  that  long  prior  to  our  independence 
the  doctrine  that  one  accused  of  crime  could  not  be  compelled 
to  testify  against  himself  had  reached  its  full  development  in 
the  common  law,  was  there  considered  as  resting  on  the  law 
of  nature,  and  was  imbedded  in  that  system  as  one  of  its  great 
and  distinguishing  attributes. 

In  Burrowea  v.  High  Commission  Court  (IClfl),  Bulst.  49, 
Lord  Coke  makes  reference  to  two  decisions  of  the  courts  of 
common  law  as  early  as  the  reign  of  Queen  Elizabeth,  wherein 
it  was  decided  that  the  right  of  a  party  not  to  be  compelled  to 
accuse  himself  could  not  be  violated  bv  the  ecclesiastical  courts. 


BRAM  V.  UNITED  STATES. 


659 


Whatever,  after  that  date,  may  have  been  the  departure  in 
practice  from  this  principle  of  the  common  law  (Tayl.  Ev., 
§886),  certain  it  is  that,  without  a  statute  so  commanding,  in 
felton^s  Caxe  (1628),  3  How.  State  Tr.  371,  the  judges  unani- 
mously resolved,  on  the  question  bning  submitted  to  them  by  the 
king,  that  "  no  such  punishment  as  torture  by  the  rack  was 
known  or  allowed  by  our  law." 

Lord  Hale  died  December  2.),  1676.  lu  the  first  volume  of 
his  Pleas  of  the  Crown  (1st  Ed.,  p.  1736),  treating  of  the  sub- 
ject of  confessions  in  cases  of  treason,  it  is  said,  at  page  304  : 

"  That  the  confession  before  one  <  t  the  privy  council  or  a 
justice  of  the  peace  being  voluntarily  mado,  without  torture, 
is  sufficient  as  to  the  indictment  on  trial  to  satisfy  the  statute, 
and  it  is  not  necessary  that  it  be  a  confession  in  court;  but  the 
confession  is  sufficient  if  made  before  him  that  hath  power  to 
take  an  examination." 

In  the  second  volume,  at  page  225,  it  is  said  : 

"When  the  prisoner  is  arraigned,  and  demanded  what  he 
saith  to  the  indictment,  either  he  confesseth  the  indictment,  or 
pleads  to  it,  or  stands  mute,  and  will  not  answer. 

"  The  confession  is  either  simple,  or  relative  in  order  to  the 
attainment  of  some  other  advantage. 

"That  which  I  call  a  simple  confession  is,  where  the  defend- 
ant, upon  hearing  of  his  indictment,  without  any  other  respect 
confesseth  it,  this  is  a  conviction;  but  it  is  usual  for  the  court, 
especially  if  it  bo  out  of  clergy,  to  advise  the  party  to  plead 
and  put  himself  upon  his  trial,  and  not  presently  to  record  his 
confession,  but  to  admit  him  to  plead.    27  Assiz.  40. 

"  If  it  be  but  an  extrajudicial  confession,  though  it  be  in  court, 
as  where  the  prisoner  freely  tells  the  fact,  and  demands  the 
opinion  of  the  court  whether  it  be  felony,  though  upon  the  fact 
thus  shown  it  appear  to  be  felony,  the  court  will  not  record  his 
confession^  but  admit  him  to  plead  to  the  felony  *  not  guilty.' 
22  Assiz.  71,  and  Stamf.  P.  C.  lib.  2,  c.  51,  fol.  142b." 

In  chapter  38  of  volume  2,  at  page  284,  after  referring  to 
the  power  of  justices  of  the  peace  and  coroners,  under  the  stat- 
utes of  Philip  and  Mary,  to  take  examinations  of  accused  per- 
sons, but  not  upon  oath,  and  that  the  same  might  be  read  in 
evidence  on  the  trial  of  the  prisoner,  it  is  said  : 

"  But  then  (1)  oath  must  be  made  eitL  er  by  the  justice  or  cor- 
oner that  took  them,  or  the  clerk  that  wrote  them;  that  they 


1o       "^ 


ImfM 

mi 

¥"•}  1 

HHj 

m 

' !' 

[m 

'     t' 

'  m 

660 


AMERICAN  CRIMINAL  REPORTS. 


^    t 


1*; 


are  the  true  substance  of  what  the  informer  gave  in  upon  oath 
and  what  the  prisoner  confessed  upon  his  examination. 

"  (2)  As  to  the  examination  of  the  prisoner,  it  must  be  testi- 
fied that  he  did  it  freely,  without  any  menace  or  undue  terror 
imposed  upon  him;  for  I  have  known  the  prisoner  disown  his 
confession  upon  his  examination,  and  hath  sometimes  been 
acquitted  against  such  his  confession.    *    »    *  » 

Gilbert,  in  his  treatise  on  Evidence  (2d  Ed.,  published  in 
1760),  says,  at  page  139 : 

t<  *  #  *  But,  then,  this  confession  must  be  voluntary  and 
without  compulsion;  for  our  law  in  this  differs  from  the  civil 
law;  that  it  will  not  force  any  man  to  accuse  himself;  and  in 
this  we  do  certainly  follow  the  law  of  nature,  which  commands 
every  man  to  endeavor  his  own  preservation;  and  therefore 
pain  and  force  may  compel  men  to  confess  what  is  not  the 
truth  of  facts,  and  consequently  such  extorted  confessions  are 
not  to  be  depended  on." 

In  Hawkins'  Pleas  of  the  Crown  (6th  Ed.,  by  Leach,  published 
in  1787,  bk.  2,  c.  31),  it  is  said  : 

"  Sec.  2.  *  *  *  And  where  a  person  upon  his  arraign- 
ment actuall}'^  confesses  he  is  guilty,  or  unadvisedly  discloses 
the  special  manner  of  the  fact,  supposing  that  it  doth  not 
amount  to  felony  where  it  doth,  yet  the  judges,  upon  probable 
circumstances,  that  such  confession  may  proceed  from  fear, 
menace  or  duress,  or  from  weakness  or  ignorance,  may  refuse 
to  record  such  confession,  and  suffer  the  party  to  plead  not 
guilty." 

In  section  3,  c.  46,  it  is  stated  that  examinations  by  the  com- 
mon law  before  a  secretary  of  state  or  other  magistrate  for 
treason  or  other  crimes  not  within  the  statutes  of  Philip  and 
Mary,  and  also  the  confession  of  the  defendant  himself  in  dis- 
course with  private  persons,  might  be  given  in  evidence  against 
the  party  confessing.  A  note  (2)  to  this  section,  presumably 
inserted  by  the  editor  (see  note  to  Gilhani's  Case,  1  Moody, 
194,  195),  reads  as  follows : 

"  The  human  mind,  under  the  pressure  of  calamity,  is  easily 
seduced,  and  is  liable,  in  the  alarm  of  danger,  to  acknowledge 
indiscriminately  a  falsehood  or  a  truth,  as  different  agitations 
may  prevail.  A  confession,  therefore,  whether  made  upon  an 
official  examination  or  in  discourse  with  private  persons,  which 
is  obtained  frpm  a  defendant,  either  by  the  flattery  of  hope,  or 


BRAM  V.  UNITED  STATES. 


561 


by  the  impressions  of  fear,  however  slightly  the  emotions  may 
be  implanted  (viiJe  O.  B.  1786,  p.  387),  is  not  admissible  evi- 
dence; for  the  law  will  not  suffer  a  prisoner  to  be  made  the 
deluded  instrument  of  his  own  conviction." 

Although  the  English  reports,  prior  to  the  separation,  are 
almost  devoid  of  decisions  applying  the  principles  stated  by- 
Lord  Hale,  Hawkins  and  Gilbert,  both  the  opinion  of  Lord 
Mansfield  in  Hex  v.  liudd  (1775),  Cowp.  333,  and  that  of  Mr. 
Justice  Wilson,  some  years  after  the  separation,  in  Zambe's 
Case  (1791),  2  Leach  (-tth  Ed.)  552,  make  it  certain  that  the  rule 
as  stated  by  Hawkins,  Gilbert  and  Hale  was  considered  in  the 
English  courts  as  no  longer  open  to  question,  and  as  one  of  the 
fundamental  principles  of  the  common  law.    Looking  at  the 
doctrine  as  thus  established,  it  would  seem  plainly  to  be  dedu- 
cible  that  as  the  principle  from  which,  under  the  law  of  nature, 
it  was  held  that  one  accused  could  not  be  compelled  to  testify 
against  himself,  was  in  its  essence  comprehensive  enough  to 
exclude  all  manifestations  of  compulsion,  whether  arising  from 
torture  or  from  moral  causes,  the  rule  formulating  the  prin- 
ciple with  logical  accuracy  came  to  be  so  stated  as  to  embrace 
all  cases  of  compulsion  which  were  covered  by  the  doctrine. 
As  the   facts  by  which  compulsion  might  manifest  itself, 
whether  physical  or  moral,  would  be  necessarily  ever  different, 
the  measure  by  which  the  involuntary  nature  of  the  confes- 
sion was  to  be  ascertained  was  stated  in  the  rule,  not  by  the 
changing    causes,  but    by  their  resultant  effect   upon  the 
mind,  that  is,  hope  or  fear,  so  that,  however  diverse  might  be 
the  facts,  the  test  of  whether  the  confession,  as  voluntary, 
would  be  uniform,  that  is,  would  be  ascertained  by  the  condi- 
tion of  mind  which  the  causes  ortlinarily  operated  to  create. 
The  well-settled  nature  of  the  rule  in  England  at  the  time  of 
the  adoption  of  the  constitution  and  of  the  fifth  amendment, 
and  the  intimate  knowledge  had  by  the  framers  of  the  prin- 
ciples of  civil  liberty  which  had  become  a  part  of  the  common 
law,  aptly  explain  the  conciseness  of  the  language  of  that 
amendment.    And  the  accuracy  with  which  the  doctrine  as 
to  confessions  as  now  formulated  embodies  the  rule  existing  at 
common  law,  aiiu  imbedded  in  the  fifth  amendment,  was 
noticed  by  thij  court  in  Wilson  v.  U.  S.,  supra,  where,  after 
referring  to  the  oriteria  of  hope  and  fear,  speaking  through 
Mr.  Chief  Justice  Fuller,  it  was  said :    *'  la  short,  the  true  test 
80 


562 


AMERICAN  CRIMINAL  REPORTS. 


1! 


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'•       IT    «   '    '1 


of  admissibility  is  that  the  confession  is  made  freel}',  volun- 
tarily and  without  compulsion  or  inducement  of  any  sort." 
162  U.  S.  623,  16  Sup.  Ct.  899. 

In  approaching  the  adjudicated  cases  for  the  purpose  of 
endeavoring  to  deduce  from  them  what  quantum  of  proof,  in 
a  case  presented,  is  adequate  to  create,  by  the  ojjeration  of 
hope  or  fear,  an  involuntary  condition  of  the  mind,  the  diffi. 
culty  encountered  is  that  all  decided  cases  necessarily  rest 
upon  the  state  of  facts  which  existed  in  the  particular  case 
and  therefore  f urn.sh  no  certain  criterion,  since  the  conclusion 
that  a  given  state  of  fact  Avas  adequate  to  have  produced  an 
involuntary  confession  does  not  establish  that  the  same  result 
has  been  created  by  a  different,  although  somewhat  similar, 
condition  of  fact.  Indeed,  the  embarrassment  which  comes 
from  the  varying  state  of  fact  considered  in  the  deciilcd  cases 
has  given  rise  to  the  statement  that  there  was  no  general  rule 
of  law  by  which  the  admissibility  of  a  confession  could  be 
determined,  but  that  the  courts  had  left  the  rule  to  bo  evolved 
from  the  facts  of  each  particular  case.  2  Ta\'l.  Ev.,  §  872. 
And,  again,  it  has  been  said  that  so  great  was  the  perplexity 
resulting  from  an  av.tempt  to  reconcile  the  authorities  that  it  was 
manifest  that  not  only  must  each  case  solely  depend  upon  its 
own  facts,  but  that  even  the  legal  rule  to  be  applied  was 
involved  in  obscurity  and  confusion.  Green  v.  /State,  88  Ga. 
516;  15  S.  E.  10;  /State  v.  Patterson,  73  Mo.  095,  7U5;  /State  v. 
Matthews,  66  N.  C.  106,  109. 

The  first  of  these  statements  but  expresses  the  thought  that 
whether  a  confession  was  voluntary  was  primarily  one  of  fact, 
and  therefore  every  case  must  depend  upon  its  own  proof. 
The  second  is  obviously  a  misconception,  for,  however  great 
may  be  the  divergence  between  the  facts  decided  in  previous 
cases  and  those  presented  in  any  given  case,  no  doubt  or 
obscurity  can  arise  as  to  the  rule  itself,  since  it  is  found  in  the 
text  of  the  constitution.  Much  of  the  confusion  which  has 
resulted  from  the  effort  to  deduce  from  the  adjudged  cas^ 
what  would  be  a  sufficient  quantum  of  proof  to  show  that  a 
confession  was  or  was  not  voluntary  has  arisen  from  a  mis- 
conception of  the  subject  to  which  the  proof  must  address 
itself.  The  rule  is  not  that,  in  order  to  render  a  statement 
admissible,  the  proof  must  be  adequate  to  establish  that  the 
particular  communications  contained  in  a  statement  were  vol- 


I"T" 


BRAM  V.  UNITED  STATEa 


503 


iintarily  made,  but  it  must  be  sufficient  to  establish  that  the 
making  of  the  statement  was  voluntary;  that  is  to  say,  that, 
from  causes  which  the  law  treats  as  legally  sufficient  to  engen- 
der in  the  mind  of  the  accused  hope  or  fear  in  >cspect  to  the 
crime  charged,  the  accused  was  not  involuntarily  impelled  to 
make  a  statement  when  but  for  the  improper  influences  he 
would  have  remained  silent.  With  this  understanding  of  the 
rule,  we  come  to  a  consideration  of  the  authorities. 

By  statutes  enacted  early  in  the  second  half  of  the  six- 
teenth century  (1  &  2  Phil.  &  M.  c.  13,  and  2  &  3  Phil.  &  M. 
c.  10),  justices  of  the  peace  were  directed,  on  accusations  of 
felony,  to  "  take  the  examination  of  the  said  prisoner  and 
information  of  them  that  bring  him."  In  1655,  the  judges 
directed  that  the  examination  of  prisoners  should  be  without 
oath  (Kel.  2),  and  the  reason  of  this  rule,  Starkie  (Ev.,  2d  Ed., 
p.  29)  says,  was  that  an  examination  under  oath  "  would  be  a 
species  of  duress,  and  a  violation  of  the  maxim  that  no  one 
is  bound  to  criminate  himself."  The  ruling  of  the  judges  in 
this  regard  was  recognized  in  the  statute  of  7  Geo.  IV,  c.  64, 
which,  although  requiring  "  information  of  witnesses  "  to  I 
"upon  oath,"  simply  directed  an  "examination"  of  the 
accused. 

But,  even  where  the  examination  was  held  without  oath,  it 
came  to  be  settled  by  judicial  decisions  in  England  that, 
before  such  an  examination  could  be  received  in  evidence,  it 
must  appear  that  the  accused  was  made  to  understand  that  it 
was  optional  with  him  to  make  a  statement.  lieg  v.  Green, 
(1833),  5  Car.  &  P.  322;  lieg  v.  Arnold  (1838),  8  Car.  &  P.  621. 
The  reason  upon  which  this  rule  rested  undoubtedly  was  that 
the  mere  fact  of  the  magistrate's  taking  the  statement,  even 
though  unaccompanied  with  an  oath,  might,  unless  he  was 
cautioned,  operate  upon  the  mind  of  the  prisoner  to  impel  him 
involuntarily  to  speak.  The  judicial  rule  as  to  caution  was 
finally  embodied  into  positive  law  by  the  statute  of  11  &  12 
■  Vict,  c.  42,  where,  by  section  18,  the  magistrate  was  directed, 
after  having  read  or  caused  to  be  read  to  the  accused  the  depo- 
sitions against  him,  to  ask  the  accused :  "  Having  heard  the 
evidence,  do  you  wish  to  say  anything  in  answer  to  the 
charge?  You  are  not  obliged  to  say  anything  unless  you 
dosire  to  do  so,  but  whatever  you  say  will  be  taken  down  in 


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664 


AMERICAN  CRIMINAL  REPORTS. 


writing,  and  may  be  given  in  evidence  against  you  upon  your 
trial." 

The  English  courts  were  frequently  called  upon  to  deter- 
mine whether  language  used  by  a  magistrate  when  about  to 
take  the  examination  of  one  accused  tended  to  induce  in  the 
mind  of  the  latter  such  hope  or  fear  as  to  lead  to  involuntary 
mental  action.  In  Reg.  v.  Drew  (1837),  8  Car.  &  P.  140,  and 
lieg.  V.  Harris  (1844),  1  Cox  Cr.  Cas.  106,  though  the  accused 
had  been  cautioned  not  to  say  anything  to  prejudice  himself, 
the  further  statement,  in  substance,  by  the  magistrate  or  his 
clerk,  that  \Vhat  the  prisoner  said  would  be  taken  down,  and 
"  would  "  be  used  for  or  against  him  at  his  trial,  was  held  by 
Coleridge,  J.,  to  be  equivalent  to  saying  that  what  the  prisoner 
chose  to  say  might  be  used  in  his  favor  at  the  trial,  and  to  be 
a  direct  inducement  to  make  a  confession,  rendering  the  state- 
ment incompetent  as  evidence.  Like  rulings  were  also  made 
in  cases  where  similar  assurances  that  the  statement  of  the 
prisoner  would  be  used  were  made  to  him  by  a  police  officer. 
Beg.  V.  Morton  (1843),  2  Moody  &  R.  514,  and  Reg.  v.  Farley 
(1844),  1  Cox  Cr.  Cas.  76. 

In  cases  where  statements  of  one  accused  had  been  made  to 
others  than  the  magistrate  upon  an  examination,  differences 
of  opinion  arose  among  the  English  judges  as  to  whether 
a  confession  made  to  a  {)erson  not  in  a  position  of  autiior- 
ity  over  the  accused  was  admissible  in  evidence  after  an 
inducement  had  been  held  out  to  the  prisoner  by  such  per- 
son. Rex  V.  Spencer  (1837),  7  Car.  &  P.  776.  It  was  finally 
settled,  however,  that  the  effect  of  inducements  must  be 
confined  to  those  made  by  persons  in  authority  (^Reg.  v. 
Taylor  (1839),  8  Car.  &  P.  734;  Reg.  v.  Moore  (1852),  2  Deni- 
son  Cr.  Cas.  522),  although,  in  the  last  cited  case,  while  former 
precedents  were  followed,  the  court  expressed  strong  doubts 
as  to  the  wisdom  of  the  restriction  (2  Denison  Cr.  Cas.  527). 
There  can  be  no  question,  however,  that  a  police  officer,  act- 
ually or  constructively  in  charge  of  one  in  custody  on  a  suspi-  • 
cion  of  having  committed  crime,  is  a  person  in  authority 
within  the  rule;  and,  as  this  is  so  well  established,  we  will  not 
consider  the  adjudicated  cases  in  order  to  demonstrate  it,  but 
content  ourselves  with  a  reference  to  the  statement  on  the 
subject  made  in  3  Kuss.  Crimes,  at  page  501. 

Many  other  cases  in  the  English  reports  illustrate  the  appli- 


BRAM  V.  UNITED  STATES. 


565 


cation  of  the  rule  excluding  statements  made  under  induce- 
ment improperly  operating  to  influence  the  mind  of  an  accused 
person. 

In  Hex  V.  Thompson  (1783),  1  Leach  (4th  Ed.)  291,  a  declara- 
tion to  a  suspected  person  that,  unless  he  gave  a  more  satis- 
factory account  of  his  connection  with  a  stolen  bank  note,  his 
interrogator  would  take  him  before  a  magistrate,  was  held 
equivalent  to  stating  that  it  would  be  better  to  confess,  and  to 
have  operated  to  lead  the  prisoner  to  believe  that  he  would 
not  be  taken  before  a  magistrate  if  he  confessed.  Baron 
Hotbam,  after  commenting  upon  the  evidence,  in  substance 
said  that  the  prisoner  was  hardly  a  free  agent  at  the  time,  as, 
though  the  language  addressed  to  him  scarcely  amounted  to  a 
threat,  it  was  certainly  a  strong  invitation  to  the  prisoner  to 
confess,  the  manner  in  which  it  had  been  expressed  rendering 
it  more  efficacious. 

In  Cass*  Case  (1784),  1  Leach,  293,  a  confession  induced  by 
the  statement  of  the  prosecutor  to  the  accused,  "  I  am  in  great 
distress  about  ray  irons.  If  you  will  tell  me  where  they  are, 
I  will  be  favorable  to  you,"  was  held  inadmissible.  Mr.  Justice 
Gould  said  that  the  slightest  hopes  of  mercy  held  out  to  a 
prisoner  to  induce  him  to  disclose  the  fact  was  sufficient  to 
invalidate  a  confession. 

In  the  cases  following,  statements  made  by  a  prisoner  were 
held  inadmissible,  because  induced  by  the  language  set  out  in 
each  case  :  In  li^^x  v.  Griffin  (1809),  Russ.  &  R.  151,  telling 
the  prisoner  that  it  would  be  better  for  him  to  confess.  In 
Rex  V.  Jones,  Id.  152,  the  prosecutor  saying  to  the  accused 
that  he  only  wanted  his  money,  and,  if  the  prisoner  gave  him 
that,  he  might  go  to  the  devil,  if  he  pleased.  In  Rex  v.  King- 
ston (1830),  4  Car.  &  P.  387,  saying  to  the  accused :  "  You 
are  under  suspicion  of  this,  and  you  had  better  tell  all  you 
know."  In  Rex  v.  Enoch  (1833),  5  Car.  &  P.  539,  saying : 
"  You  had  better  tell  the  truth,  or  it  will  lie  upon  you,  and 
the  man  go  free."  In  Rex  v.Mills  (1833),  6  Car.  &  P.  146,  saying: 
"  It  is  no  use  for  you  to  deny  it,  for  there  is  the  man  and  boy 
who  will  swear  they  saw  you  do  it."  In  Sherrington's  Case 
(1838),  2  Lewin  Cr.  Cas.  123,  saying :  "  There  is  no  doubt, 
thou  wilt  be  found  guilty :  It  will  be  better  for  you  if  you 
will  confess."  \xCRex  v.  Thomas  (1833),  6  Car.  &  P.  853,  say- 
ing :    "  You  had  better  split,  and  not  suffer  for  all  of  them." 


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AMERICAN  CRIMINAL  REPORTS. 


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In  Hex  V.  Simpson  (1S34),  1  Moody,  410,  and  Ryan  &  M.  410, 
repeated  importunities  by  neighbors  and  relatives  of  the  pros- 
ecutor, coupled  with  assurances  to  the  suspected  person  that 
it  would  be  a  good  deal  worse  for  her  if  she  did  not,  and  that 
it  would  be  better  for  her  if  she  did  confess.  In  Jiex  v. 
Upchurch  (1836),  3  Moody,  465,  saying :  "  If  you  are  guiltv, 
do  confess.  It  will  perhaps  save  your  neck.  You  will  have 
to  go  to  prison.  If  William  H.  (another  person  suspected, 
and  whom  the  prisoner  had  charged)  is  found  clear,  the  guilt 
will  fall  on  you.  Pray  tell  me  if  you  did  it."  In  Rex  v.  Croy- 
don (1846),  2  Cox  Cr.  Cas.  67,  saying:  "  I  dare  say  you  had 
a  hand  in  it.  You  may  as  well  tell  me  all  about  it."  In  lieg. 
V.  Gamer  (1848),  1  Denison  Cr.  Cas.  32(  saying :  "  It  will 
be  better  for  you  to  speak  out." 

In  lieg.  v.  Fleming  (1842),  Arms.,  M.  &  O.  330,  statements 
of  a  police  officer  suspected  of  having  committed  a  crime,  in 
answer  to  questions  propounded  by  his  superior  in  office,  after 
the  latter  had  warned  the  accused  to  be  cautious  in  his 
answers,  were  held  inadmissible.  The  court  said:  "The 
prisoner  and  witness  being  both  on  the  police  force,  the  pris- 
oner, as  the  witness  admitted,  might  have  conceived  himself 
bound  to  tell  the  truth;  and  the  caution  was  not  of  that 
nature  which  should  make  the  confession  of  the  prisoner 
admissible." 

In  the  leading  case  of  lieg.  v.  BaMry  (1852),  2  Denison  Cr. 
Cas.  430,  after  full  consideration,  it  was  held  that  tlie  declara- 
tion made  to  a  prisoner,  who  had  first  been  ca>i'  '  -Itat 
what  he  said  "would"  be  used  as  evidence,  moiv. ..;  '  .>Oited 
that  such  statement  "  might "  be  used,  and  coul'  iofc  have 
induced  in  the  mind  of  the  prisoner  a  hojw  of  bene  til  sufficient 
to  lead  bim  to  make  a  statement.  The  cases  of  lieg.  v.  Drew, 
Reg.  V.  HarriSy  Reg.  v.  Iforton,  and  Reg.  v.  Farley,  heretofore 
referred  to,  were  held  to  have  been  erroneously  decided. 

In  the  course  of  the  argument,  counsel  for  the  prisoner 
cited  and  commented  upon  Cass'  Case,  Rex  v.  Thomas,  S/ier- 
rington's  Case  and  Rex  v.  Enoch,  also  heretofore  referred  to, 
as  illustrating  the  doctrine  that  assuring  the  accused  that  it 
would  be  better  for  him  to  speak,  or  other  intimation  given 
of  possible  benefit,  would  invalidate  a  confession  thus  induced. 
After  counsel  had  concluded  his  reference  to  these  cases.  Pol- 
lock, C.  B.,  said  (page  432) :    "  There  is  no  doubt  as  to  the 


^4\^''- 


BRAM  V.  UNITED  STATES. 


fl«7 


application  of  the  rule  in  those  cases,  which  are  all  familiar  to 
tlie  jiulges  and  to  the  bar." 

In  the  course  of  the  ojnnion,  subsequently  delivered  by  him, 
Chief  Baron  Pollock  said  (page  442) : 

"A  simple  caution  to  the  accused  to  tell  the  truth,  if  he  says 
anything,  it  has  been  decided  not  to  be  sufficient  to  prevent 
the  statement  made  being  given  in  evidence;  and  although 
it  may  be  put  that,  when  a  person  is  told  to  tell  the  truth,  he 
may  possibly  understand  that  the  only  thing  true  is  that  he  is 
guilty,  that  is  not  what  he  ought  to  understand.  He  is 
reminded  that  he  need  not  say  anything,  but,  if  he  says  any- 
thing, let  it  be  true.  It  has  been  decided  that  that  would  not 
prevent  the  statement  being  received  in  evidence,  by  Little- 
dale,  J.,  in  the  case  of  Rex  v.  Court,  7  Car.  &  P.  486,  and  by 
Rolfe,  B.,  in  a  case  at  Gloucester  Hef/.  v.  Holmes,  1  Car.  &  K. 
258;  but  where  the  admonition  to  speak  the  truth  has  been 
coupled  with  any  expression  importing  that  it  would  be  better 
for  him  to  do  so,  it  has  been  held  that  the  confession  was  not 
receivable,  the  objectionable  words  being  that  it  would  be 
better  to  speak  the  truth,  because  they  import  that  it  would 
be  better  for  him  to  say  something.  This  was  decided  in  the 
case  of  Reg.  v.  Garner,  1  Denison  Cr.  Cas.  329.  The  true 
distinction  between  the  present  case  and  a  case  of  that  kind  is 
that  it  is  left  to  the  prisoner  a  matter  of  perfect  indifference 
whether  he  should  open  his  mouth  or  not." 

In  Reff.  V.  Moore  (1852),  2  Denison  Cr.  Cas.  523,  also  decided 
by  the  court  of  criminal  appeal,  an  admonition  to  a  person 
suspected  of  crime  that  she  "  had  better  speak  the  truth,"  was 
held  not  to  vitiate  a  subsequent  confession,  because  not  made 
by  a  person  in  authority.  Parke,  B.,  delivering  the  opinion 
of  the  judges,  said,  in  substance,  page  526,  that  one  element 
in  the  consideration  of  the  question  whether  a  confession 
ought  to  be  excluded  was  "  whether  the  threat  or  inducement 
was  such  as  to  be  likely  to  influence  the  prisoner,"  and  "  that 
if  the  threat  or  inducement  was  held  out,  actually  or  con- 
structively, b}'  a  person  in  authorit}',  it  can  not  be  received, 
however  slight  the  threat  or  inducement." 

In  Reg.  v.  Ohsverion  (1862),  2  Falc.  &  F.  833,  a  statement 
made  by  a  policeman  to  a  person  in  his  custody,  that  "  you 
had  better  tell  all  about  it;  it  will  save  you  trouble,"  was  held 
to  operate  as  a  threat  or  inducement  sufficient  to  render  what 
was  said  by  the  prisoner  inadmissible. 


*;I  i 


i 


I 


!  I 


1^ 


568 


AMERICAN  CRIMINAL  REPORTS. 


In  lieff.  V.  Fennell  (18S1),  7  Q.  B.  Div.  147,  the  court  for 
crown  cases  reserved  referred  approvingly  to  the  statement  of 
the  rule  contained  in  Russel!  on  Crimes,  and,  "  upon  all  the 
decided  oases,"  held  inadmissible  a  statement  made,  induced 
by  the  prosecutor  saying  to  the  prisoner  in  the  presence  of  an 
inspector  of  police :  "  The  inspector  tells  me  you  are  making 
housebreaking  implements.  If  this  is  so,  you  had  better  tell 
the  truth;  it  may  be  better  for  you." 

The  latest  decision  in  England  on  the  subject  of  inducement, 
made  by  the  court  for  crown  cases  reserved,  is  Reg.  v.  Thomp- 
son (1S93)  2  Q.  li.  12.    At  the  trial  a  confession  was  offered  in 
evidence,  which  had  been  made  by  the  defendant  before  his 
arrest  upon  the  charge  of  having  embezzled  funds  of  a  certain 
corporation.     Objection   was  interposed  to  its  reception  in 
evidence,  on  the  ground  that  it  had  been  made  under  the 
operation  of  an  inducement  held  out  by  the  chairman  of  the 
company  in  a  statement  to  a  relative  of  the  accused,  intended 
to  be  and  actually  communicated  to  the  latter,  that  "  it  will 
be  the  right  thing    for  Marcellus  (the  accused)  to  make  a 
clean  breast  of  it."    The  evidence  having  been  admitted,  and 
the  prisoner  convicted,  the  question  Avas  submitted   to  the 
upper  court  whether  the  evidence  of  the  confession  was  prop- 
erly admitted.    The  opinion  of  the  appellate  court  was  deliv- 
ered by  Cave,  J.,  and  concurred  in  by  Lortl  Coleridge,  C.  J., 
Hawkins,  Day,  and  Wills,  JJ.    After  stating  and  adopting 
the  ruling  of  Baron  Parke  in  Eey.  v.  Warringham,  2  Denison 
Cr.  Cas.  447,  note,  to  the  effect  that  it  was  the  duty  of  the 
prosecutor  to  satisfy  the  trial  judge  that  the  confession  had 
not  been  obtained  by  improper  means,  and  that,  where  it  was 
Impossible  to  collect  from  the  proof  whether  such  was  the 
case  or  not,  the  confession  ought  not  to  be  received,  the 
opinion  referred  approvingly  to  the  declaration  of  Pollock,  C. 
B.,  in  Reg.  v.  Baldry^  that  the  true  ground  of  the  exclusion  of 
statements  not  voluntary  was  that  "  it  would  not  be  safe  to 
receive  a  statement  made  under  any  influence  of  fear."    The 
court  then  quoted  the  rule  laid  down  in  Russell  on  Crimes  as 
being  a  statement  of  the  principles  which  had  been  restated 
and  afiirmed  by  the  Lord  Chief  Justice  in  the  Fennell  case, 
and  added : 

"If  these  principles  and  the  reasons  for  them  are,  as  it 
seems  impossible  to  doubt,  well  founded,  they  afford  to  magis- 


BRAM  V.  UNITED  STATES. 


5G9 


trates  a  simple  test  by  which  the  admissibility  of  a  confession 
may  be  decided.  They  have  to  ask,  is  it  prove.1  affirma- 
tively that  the  confession  was  free  and  voluntary  ?  1  hat  is, 
was  it  preceded  by  any  inducement  to  make  a  statement  hold 
out  by  a  person  in  authority  ?  If  so,  and  the  inducement  has 
not  clearly  been  removed  before  the  statement  was  made, 
evidence  of  the  statement  is  inadmissible." 

After  reviewing  the  evidence,  and  holding  that,  under  the 
ruling  of  Pollock,  C.  B.,  in  the  Baldry  case,  it  was  immaterial 
whether  the  statements  made  by  the  chairman  were  calculated 
to  elicit  the  truth,  and  intimating  that  they  tended  to  lead  the 
prisoner  to  believe  that  it  would  be  better  for  him  to  say 
something,  the  opinion  concluded  with  deciding  that,  "  on  the 
broad,  plain  ground  that  it  was  not  proved  satisfactorily  that 
the  confession  was  free  and  voluntary,"  the  confession  ought 
not  to  have  been  received. 

While,  as  we  have  said,  there  is  no  question  that  a  police 
oificer  having  a  prisoner  in  custody  is  a  person  in  authority, 
within  the  rule  in  England,  and  therefore  that  any  induce- 
ment by  him  offered,  calculated  to  operate  upon  the  mind  of 
the  prisoner,  would  render  a  confession  as  a  consequence 
thereof  inadmissible,  there  seems  to  be  doubt  in  England 
whether  the  doctrine  does  not  extend  further,  and  hold  that 
the  mere  fact  of  the  interrogation  of  a  prisoner  by  a  police 
officer  would  per  se  render  the  confession  inadmissible,  because 
of  the  inducement  result in;^  from  the  very  nature  of  the 
authority  exercised  by  the  police  officer,  assimilating  him  in 
this  regard  to  a  committing  or  examining  magistrate.  3  Russ. 
Crimes,  p.  510,  note  t.  In  Jieff.  v.  Johnson  (IS64),  15  Ir.  C.  L. 
60,  this  subject  was  elaborately  considered  by  the  Irish  court 
of  criminal  appeal,  seven  of  the  judges  writing  opinions,  and 
the  majority  concluding,  on  a  full  consideration  of  the  Eng- 
lish and  Irish  authorities,  that  a  policeman  was  not  such  an 
official  as  would  render  per  se  any  confession  elicited  by  his 
questioning  the  prisoner  inadmissible,  although  the  fact  of  his 
questioning  became  an  important  element  in  determining 
whether  inducement  resulted  from  the  language  by  him  used. 
The  English  authorities,  however,  referred  to  in  the  above 
note  to  Russell  on  Crimes,  are  later  in  date  than  Reg.  v.  John- 
son, although  they  emanate  from  nisi  prius  courts,  and  not 
from  appellate  tribunals.    Whatever  be  the  rule  in  this  regard 


•■f    ■' 


'I.) 

.3 !.'; 


670 


AMERICAN  CRIMINAL  REPORTS. 


in  England,  however,  it  is  certain  that,  where  a  confession  is 
eliciteil  by  the  questions  of  a  police.nan,  the  fact  of  its  having 
been  so  obtained,  it  is  conceded,  may  be  an  important  element 
in  determining  whether  the  answers  of  the  prisoner  were 
voluntary.  The  attempt  on  the  part  of  a  police  oilicer  to 
obtain  a  confession  by  interrogating  has  been  often  rei)roved 
by  the  English  courts  as  unfair  to  the  prisoner,  and  as 
approaching  dangerously  near  to  a  violation  of  the  rule  pro- 
tecting an  accused  from  being  compelled  to  testify  against 
himself.  Bernjman'a  Case  (1854),  6  Cox  Cr.  Cas.  388;  dm- 
erton'a  Cme  (1862),  2  Falc.  &  F.  833;  Mick's  Case  (18G3),  3 
Frtlc.  &  F.  822;  Reatjan's  Case  (1867),  87  Law  T.  (N.  S.)  325; 
and  Reason's  Case  (1872),  12  Cox  Cr,  Cas.  228. 

From  this  review  it  clearly  appears  that  the  rule  as  to  con- 
fessions by  an  accused  (leaving  out  of  consideration  the  rule 
now  followed  in  England  restricting  the  effect  of  inducements, 
according  as  such  inducements  were  or  were  not  held  out  by 
persons  in  authority)  is  in  England  to-da}'  what  it  was  prior 
to  and  at  the  adoption  of  the  fifth  amendment,  and  that,  while 
all  the  decided  cases  necessarily  rest  upon  the  state  of  fjicts 
which  the  cases  considered,  nevertheless  the  decisions  as  a 
whole  afford  a  safe  guide  by  which  to  ascertain  Avhether  in 
this  case  the  confession  was  voluntary,  since  the  facts  here 
presented  are  strikingly  like  those  considered  in  many  of  the 
English  cases. 

We  come,  then,  to  the  American  authorities.  In  this  court 
the  general  rule  that  the  confession  must  be  free  and  volun- 
tary— that  is,  not  produced  by  inducements  engendering 
either  hope  or  fear — is  settled  by  the  authorities  referred  to 
at  the  outset.  The  facts  in  the  particular  cases  decided  in  this 
court,  and  which  have  been  referred  to,  manifested  so  clearly 
that  the  confessions  were  voluntary  that  no  useful  purpose 
can  be  subserved  by  analyzing  them.  In  this  court  also  it 
has  been  settled  that  the  mere  fact  that  the  confession  is  made 
to  a  police  officer,  while  the  accused  was  under  arrest  in  or 
out  of  prison,  or  was  drawn  out  by  his  questions,  docs  not 
necessarily  render  the  confession  involuntary;  but,  as  one  of 
the  circumstances,  such  imprisonment  or  interrogation  may 
be  taken  into  account  in  determining  whether  or  not  the  state- 
ments of  the  prisoner  were  voluntary.  Ilopt  v.  Utah,  1 10  U. 
S.  574,  4  Am.  Cr.  K.  457;  Sparf  v.   U.  S.,  156  U.  S.  51,  55, 


BRAM  V.  UNITED  STATES. 


671 


ante,  168.  And  this  last  rule  thus  by  this  court  established  is 
also  the  doctrine  u])held  by  the  state  decisions. 

In  the  various  state  coui*s  of  last  resort  the  general  rule 
we  iiave  just  referred  to,  that  a  confession  must  be  voluntary, 
is  generally  recognized,  although  in  Indiana  there  is  a  statute 
authorizing  confessions  obtained  by  inducements  to  be  given 
in  evidence  to  the  jury,  with  all  the  attending  circumstances, 
except  when  made  under  the  influence  of  fear  produced  by 
threats,  while  it  is  also  provided  that  a  conviction  can  not  be 
had  by  proof  of  a  confession  made  under  inducement,  "  with- 
out corroborating  testimony."  Rev.  Stat.  Ind.  1881,  §  1802 
(Rev.  St.  1894,  §  1871).  And,  in  the  Texas  Code  of  Procedure 
(article  750)  it  is  provided  that  confessions  tnall  not  be  used 
against  a  prisoner  at  his  trial  "  if,  at  the  time  it  was  made,  the 
defendant  was  in  jail  or  other  place  of  confinement,  nor  where 
he  was  in  custody  of  an  officer,  unless  such  confession  be  made 
in  the  voluntary  statement  of  the  accused,  taken  before  an 
examining  court  in  accordance  with  law;  or  be  made  volun- 
tarily, after  having  been  first  cautioned  that  it  may  be  used 
against  him;  or  unless,  in  connection  with  such  confession,  he 
makes  statement  of  facts  or  of  circumstances  that  are  found  to 
be  true,  which  conduce  to  establish  his  guilt,  such  as  the  find- 
ing of  secreted  or  stolen  property,  or  instrument  with  which 
he  states  the  offense  was  committed." 

The  English  doctrine  which  restricts  the  operation  of  induce- 
ments solely  to  those  made  by  one  in  authority  has  been 
adopted  by  some  state  courts,  but  disapproved  of  in  others, 
as  in  Ohio.  Speara  v.  State,  2  Ohio  St.  583.  Whether  it  is 
one  which  should  be  followed  by  this  court  in  view  of  the 
express  terms  of  the  constitution  need  not  be  now  considered, 
as  it  does  not  arise  under  the  state  of  facts  here  presented.  In 
some  it  is  also  held  that  the  fact  that  the  accused  is  exam- 
ined on  oath  by  a  magistrate  or  coroner,  or  by  a  grand  jury, 
with  or  without  an  oath,  will  per  se  exclude  confessions, 
because  of  the  influence  presumed  to  arise  from  the  authority 
of  the  examining  officer  or  body.  People  v.  Mc3fahon,  (1857) 
15  N.  Y.  384,  followed  in  People  v.  Moudon,  (1886)  103  N.  Y. 
211,  218;  State  v.  Matthews,  (1872)  66  N.  C.  106;  Jaclson  v. 
State,  (1879)56  Miss.  311,312;  State  v.  Cliforcl {lS92)8{i  Iowa, 
550.  This  doctrine  as  to  examining  magistrates  is  in  some 
states  enforced  by  statutes  somewhat  similar  in  character  to 
the  English  statutes.    2  Tayl.  Ev.,  §  888,  note  2. 


673 


AMERICAN  CRIMINAL  REPORTS. 


Mmt:::'  V 


5  :.-  v.:  Jk 


In  some  of  the  states  it  has  been  held  that  where  questions 
are  propounded  to  a  prisoner  by  one  hiiving  a  right  to  ask 
them,  and  he  remains  silent,  where  from  the  nature  of  the 
inquiries,  if  innocent,  reply  would  naturally  be  made,  the  fact 
of  such  silence  may  bo  weighed  by  the  jury.  See  authorities 
collected  in  Chamberlayne's  note  (4)  to  2  Tayl.Ev.  p.  588,  et/<eq. 

Having  stated  the  general  lines  upon  which  the  AnuM-icun 
cases  proceed,  we  will  not  attempt  to  review  in  detail  the  numer- 
ous decisions  in  the  various  courts  of  last  resort  in  the  several 
states  treating  of  confessions  in  the  divergent  aspects  in 
which  that  doctrine  may  have  presented  itself,  but  will  content 
ourselves  with  a  brief  reference  to  a  fow  leading  and  well-con- 
sidered cases  treating  of  the  subject  of  inducements,  and  wiiich 
are  therefore  apposite  to  the  issue  now  considered. 

In  the  following  cases  the  language  in  each  mentioned  was 
held  to  be  an  inducement  suiflcicnt  to  exclude  a  confession  or 
statement  made  in  consequence  thereof:  In  Kelhj  v.  Sttife 
(1882),  72  Ala.  244,  saying  to  the  prisoner:  "You  have  j,'ot 
your  foot  in  it,  and  somebody  else  was  with  you.  Now,  if  you 
did  break  open  the  door  the  best  thing  you  can  do  is  to  tell  all 
about  it,  and  to  tell  who  was  with  you,  and  to  tell  the  truth,  the 
whole  truth,  and  nothing  but  the  truth."  In  People  v.  liarrie, 
49  Cal.  342,  saying  to  the  accused :  "  It  will  be  better  for  you 
to  make  a  full  disclosure."  In  People  v.  Thompson  (1S90),  84 
Cal.  598,  605,  saying  to  the  accused :  "  I  don't  think  the  truth 
will  hurt  anybody.  It  will  be  better  for  you  to  come  out  and  tell 
all  you  know  about  it,  if  you  feel  that  way."  1  n  Berrt/  v.  U.  S. 
(1893),  2  Colo.  186, 188, 203,  advising  the  prisoner  to  make  full 
restitution,  and  saying :  "  If  you  do  so,  it  will  go  easy  with 
you.  It  will  be  better  for  you  to  confess.  The  door  of  mercy  is 
open,  and  that  of  justice  closed; "  and  threatening  to  arrest 
the  accused  and  expose  his  family  if  he  did  not  confess.  In 
State  V.  Bostick  (1^45),  4  Har.  (Del.)  563,  saying  to  one  sus- 
pected of  crime :  "  The  suspicion  is  general  against  you,  and 
you  had  as  well  tell  all  about  it.  The  prosecution  will  be  no 
greater.  I  don't  expect  to  do  any  thing  with  you.  I  am  going 
to  send  you  home  to  your  mother."  In  Green  v.  State  (ISDl), 
88  Ga.  516,  saying  to  the  accused :  "  Edmund,  if  you  know 
anything,  it  may  be  best  for  you  to  tell  it;"  or,  "Edmund,  if  you 
know  anything,  go  and  tell  it,  and  it  may  be  best  for  you."  In 
Rector  v.  Com.  (1882),  80  Ky.  468,  saying  to  the  prisoner  in  a 


il^ 


BRAM  V.  UNITED  STATES. 


673 


case  of  larceny :  "  It  will  go  bettor  with  you  to  toll  where 
the  money  is.  All  J  want  is  my  money,  and  if  you  will  tell  me 
where  it  is,  I  will  not  prosecute  you  luucl."  In  liiwoe  v.  State 
(1887),  «7  Md.  6,  saying  to  the  accused :  •'  It  will  be  better  for 
you  to  tell  the  truth,  and  have  no  more  trouble  about  it."  In 
Com.  V.  Nott  (1883),  135  Mass.  200,  saying  to  the  accused ; 
"  You  had  better  own  up.  I  was  in  the  place  when  you  took 
it.  We  have  got  you  down  fine.  This  is  not  the  first  you 
have  taken.  "We  have  got  other  things  against  you  nearly  as 
good  as  this."  In  Com.  v.  Myers  (1894),  100  Mass.  530,  saying 
to  the  accused :  "  You  had  bettor  tell  the  truth."  In  People 
V.  Wolcott  (1883),  51  Mich.  012,  saying  to  the  accused :  "  It 
will  be  better  for  you  to  confess."  In  Territory  v.  Umlerwood 
(1888),  8  Mont.  131,  saying  to  the  prisoner  that  it  would  be 
better  to  tell  the  prosecuting  witness  all  about  it,  and  that 
the  officer  thought  the  prosecuting  witness  would  with- 
draw the  prosecution,  or  make  it  as  light  as  possible.  In 
State  V.  York  (1858),  37  N.  H.  175,  saying  to  one  under  arrest 
immediately  before  a  confession,  "  If  you  are  guilty,  you  had 
better  own  it."  In  Peoj)le  v.  Phillips  (1870),  42  N.  Y.  200, 
saying  to  the  prisoner:  "  The  best  you  can  do  is  to  own  up. 
It  will  be  better  for  you."  In  State  v.  Whitfield  (1874),  70  K 
C.  350,  saying  to  the  accused :  "  I  believe  you  are  guilty.  If 
you  are,  you  had  better  say  so.  If  you  are  not,  you  had  better 
say  that."  In  State  v.  Brake  (1893),  113  N.  C.  024,  saying  to 
the  prisoner :  "  If  you  are  guilty,  I  would  advise  3'ou  to  make 
an  honest  confession.  It  might  be  easier  for  you.  It  is  plain 
against  you."  In  Vaughan  v.  Com.  (1807),  ITGrat.  570,  saying 
to  the  accused :    "  You  had  as  well  tell  all  about  it." 

We  come,  then,  to  a  consideration  of  the  circumstances  sur- 
rounding, and  the  facts  established  to  exist,  in  reference  to  the 
confession,  in  order  to  determine  whether  it  was  shown  to  have 
been  voluntarily  made.  Before  analyzing  the  statement  of  the 
police  detective  as  to  what  took  place  between  himself  and  the 
accused,  it  is  necessary  to  recall  the  exact  situation.  The  crime 
had  been  committed  on  the  high  seas.  Brown,  immediately 
after  the  homicide,  had  been  arrested  by  the  crew  in  conse- 
quence of  suspicion  aroused  against  him,  and  had  been  by  them 
placed  in  irons.  As  the  vessel  came  in  sight  of  land,  and  was 
approaching  Halifax,  the  suspicions  of  the  crew  having  been 
also  directed  to  Bram,  he  was  arrested  by  them,  and  placed  in 


r'^Ri*n 


;«;■. 


nil 


t.it 


Pi' 


in 


'M 


t   Li 
f 


'I. 

t:    t.ti 


574 


AMERICAN  CRIMINAL  REPORTS. 


irons.  On  reaching  port,  these  two  suspected  persons  were 
delivered  to  the  custody  of  the  police  authorities  of  Halifax 
and  were  there  held  in  confinement,  awaiting  the  action  of  the 
United  States  consul,  which  was  to  determine  whether  the 
suspicions  which  had  caused  the  arrest  justified  the  sending  of 
one  or  both  of  the  prisoners  into  the  United  States  for  formal 
charge  and  trial.  Before  this  examination  had  taken  place, 
the  ])olice  detective  caused  Brara  to  be  brought  from  jail  to  his 
private  office;  and,  when  there  alone  with  the  detective,  he 
was  stripped  of  his  clothing,  and  either  while  the  detective 
was  in  the  act  of  so  stripping  him,  or  after  he  was  denuded,  the 
conversation  offered  as  a  confession  took  place.  The  detective 
repeats  what  he  said  to  the  prisoner,  whom  he  had  thus 
8trii)iied,  as  follows: 

"  When  Mr.  linim  came  into  my  office,  I  said  to  him :  '  Bram, 
we  are  trying  to  unravel  this  horrible  mystery.'  I  said: 
'  Your  position  is  rather  an  awkward  one.  I  have  had  Brown 
in  this  office,  and  he  made  a  statement  that  he  saw  you  do  the 
murder.'  He  said  :  '  He  could  not  have  seen  me.  Where  was 
he  ? '  I  said  :  '  He  states  he  Avas  at  the  wheel.'  '  AVell,'  he 
said,  '  he  could  not  see  me  from  there.' " 

The  fact,  then,  is  that  the  language  of  the  accused,  which 
was  offered  in  evidence  as  a  confession,  was  made  use  of  bv 
him  as  a  reply  to  the  statement  of  the  detective  that  Bram's 
co-suspect  had  charged  him  with  the  crime;  and  although  the 
answer  was  in  the  form  of  a  denial,  it  was  doubtless  offered  as 
a  confession,  because  of  an  implication  of  guilt  which  it  was 
conceived  the  words  of  the  denial  might  be  considered  to  mean. 
But  the  situation  of  the  accused,  and  the  nature  of  the  com- 
munication made  to  him  by  the  detective,  necessarily  over- 
throw any  possible  implication  that  his  reply  to  the  detective 
could  have  been  the  result  of  a  purely  voluntary  mental  action; 
that  is  to  say,  when  all  the  surrounding  circumstances  are 
considered  in  their  true  relations,  not  only  is  the  claim  that 
the  statement  was  voluntary  overthrown,  but  the  iiujiression 
is  irresistibly  produced  that  it  must  necessarily  have  been  the 
result  of  either  hope  or  fear,  or  both,  operating  on  the  mind. 

It  can  not  be  doubted  that,  placed  in  the  position  in  which 
the  accused  was  when  the  statement  was  made  to  him  that  the 
other  suspected  person  had  charged  him  with  crime,  the  result 
was  to  produce  upon  his  mind  the  fear  that  if  he  remained 


BEAM  V.  UNITED  STATES. 


575 


'.IM 


silent  it  would  be  considered  an  admission  of  guilt,  and  there- 
fore render  certain  his  being  committed  for  trial  as  the  guilty 
person;  and  it  can  not  be  conceived  that  the  converse  impres- 
sion would  not  also  have  naturally  arisen  that,  by  denying, 
there  was  hope  of  removing  the  suspicion  from  himself;  if  this 
must  have  been  the  state  of  mind  of  one  situated  as  was  the' 
prisoner  when  the  confession  was  made,  how,  in  reason,  can  it 
be  said  that  the  answer  v/hich  he  gave,  and  which  was  required 
by  the  situation,  was  wholly  voluntary,  and  in  no  manner  influ- 
enced by  the  force  of  hope  or  fear  ?  To  so  conclude  .would  be  to 
deny  the  necessary  relation  of  cause  and  effect.  Indeed,  the 
implication  of  guilt  resulting  from  silence  has  been  considered 
by  some  state  courts  of  last  resort,  in  decided  cases,  to  which 
we  have  already  made  reference,  as  so  cogent  that  they  have 
held  that  where  a  person  is  accused  of  guilt,,  under  circum- 
stances which  call  upon  him  to  make  denial,  the  fact  of  his 
silence  is  competent  evidence  as  tending  to  establish  guilt. 
While  it  must  not  be  considered  that,  by  referring  to  these 
authorities,  we  approve  them,  it  is  yet  manifest  that,  if  learned 
judges  have  deduced  the  conclusion  that  silence  is  so  weighty 
as  to  create  an  inference  of  guilt,  it  can  not,  with  justice,  be 
said  that  the  mind  of  one  who  is  held  in  custody  under  sus- 
picion of  liu,ving  committed  a  crime  would  not  be  impelled  to 
say  something  when  informed  by  one  in  authorit}'^  that  a 
co-suspect  had  declared  that  he  had  seen  the  person  to  whom  the 
ofticer  was  addressing  himself  commit  the  offense,  when  other- 
wise he  might  have  remained  silent  but  for  fear  of  the  conse- 
quences which  might  ensue;  that  is  to  say,  he  would  be  impelled 
to  speak  either  for  fear  that  his  failure  to  make  answer  would  be 
considered  against  him,  or  in  hope  that,  if  he  did  replv,  he  would 
bo  benefited  thereby.  And  these  self-evident  deductions  are 
greatly  strengthened  by  considering  the  place  where  the  state- 
ments were  made,  and  the  conduct  of  the  detective  toward  the 
accused.  Bram  had  been  brought  from  confinement  to  the  office 
of  the  detective,  and  there,  when  alone  with  him,  in  a  foreign 
land,  while  he  was  in  the  act  of  being  stripped  or  had  been 
stripped  of  his  clothing,  was  interrogated  by  the  officer,  who 
was  thus,  while  putting  the  questions  and  receiving  answers 
thereto,  exercising  complete  authority  and  control  over  the 
jxjrson  ho  was  interrogating.  Although  these  facts  may  not, 
when  isolated  each  from  the  other,  be  sufficient  to  warrant 


i:&iii:i;i;:: 


576 


AMERICAN  CRIMINAL  REPORTS. 


Ill 


i  I 


the  inference  that  an  influence  compelling  a  statement  had  heen 
exerted;  yet,  when  taken  as  a  whole,  in  conjunction  with  the 
nature  of  the  communication  made,  thoy  give  room  to  the 
strongest  inference  that  the  statements  of  Bram  were  not 
made  by  one  who,  in  law,  could  be  considered  a  free  agent. 
To  communicate  to  a  person  suspected  of  the  commission  of 
crime  the  fact  that  his  co-suspect  has  stated  that  he  has  seen 
him  commit  the  offense,  to  make  this  statement  to  him  under 
circumstances  which  call  imi^eratively  for  an  admission  or 
denial,  and  to  accompany  the  communication  with  conduct 
which  necessarily  perturbs  the  mind  and  engenders  confusion 
of  thought,  and  then  to  use  the  denial  made  by  the  person  so 
situated  as  a  confession,  because  of  the  form  in  which  the 
denial  is  made,  is  not  only  to  compel  the  reply,  but  to  produce 
the  confusion  of  words  supposed  to  be  found  in  it,  and  then  use 
statements  thus  brought  into  being  for  the  conviction  of  the 
accused.  A  plainer  violation  as  well  of  the  letter  as  of  the 
spirit  and  purpose  of  the  constitutional  immunity  could  scarcely 
be  conceived  of. 

Moreover,  aside  from  the  natural  result  arising  from  the 
situation  of  the  accused  and  the  communication  made  to  him 
by  the  detective,  the  conversation  conveyed  an  express  intima- 
tion rendering  the  confession  involuntary,  within  the  rule  laid 
down  by  the  authorities.  What  further  was  said  by  the  detec- 
tive ?  " '  Now,  look  here  Bram,  1  am  satisfied  that  you  killed 
the  captain,  from  all  I  have  heard  from  Mr.  Brown.  But,'  I 
said, '  some  of  us  here  think  you  could  not  have  done  all  that 
crime  alone.  If  you  had  an  accomplice,  you  should  say  so, 
and  not  have  the  blame  of  this  horrible  crime  upon  your  own 
shoulders.' "  But  how  could  the  weight  of  the  whole  crime  be 
removed  from  the  shoulders  of  the  prisoner  as  a  consequence 
of  his  speaking,  unless  benefit  as  to  the  crime  and  its  punish- 
ment was  to  arise  from  his  speaking?  Conceding  that,  closely 
analyzed,  the  hope  of  benefit  which  the  conversation  suggested 
was  that  of  the  removal  from  the  conscience  of  the  prisoner 
of  the  merely  moral  weight  resulting  from  concealment,  and 
therefore  would  not  be  an  inducement,  we  are  to  consider  the 
import  of  the  conversation,  not  from  a  mere  abstract  point  of 
view,  but  by  the  light  of  the  impression  that  it  was  calculated 
to  produce  on  the  mind  of  the  accused,  situated  as  he  was  at 
the  time  the  conversation  took  place.    Thus  viewed,  the 


BRAM  V.  UNITED  STATES. 


577 


weight  to  be  removed  by  speaking  naturally  imported  a  sug- 
gestion of  some  benefit  as  to  the  crime  and  its  punishment  as 
arising  from  making  a  statement. 

This  is  greatly  fortified  by  a  consideration  of  the  words  which 
preceded  this  language;  that  is,  that  Brown  had  declared  he 
had  witnessed  the  homicide,  and  that  the  detective  had  said 
he  believed  the  prisoner  was  guilty,  and  had  an  accomplice. 
It,  in  substance,  therefore,  called  upon  the  priijoner  to  disclose 
his  accomplice,  and  might  well  have  been  understood  as  hold- 
ing out  an  encouragement  that,  by  so  doing,  he  might  at  least 
obtain  a  mitigation  of  the  punishment  for  the  crime  which 
otherwise  would  assuredly  follow.  As  said  in  the  passage 
from  Eussell  on  Crimes  already  quoted :  "  The  law  can  not 
measure  the  force  of  the  influence  used,  or  decide  upon  its 
effect  upon  the  mind  of  the  prisoner,  and  therefore  excludes 
the  declaration  if  any  degree  of  influence  has  been  exerted." 
In  the  case  before  us  we  find  that  an  influence  was  exerted, 
and,  as  any  doubt  as  to  whether  the  confession  was  voluntary 
must  be  determined  in  favor  of  the  accused,  we  can  not  escape 
the  conclusion  that  error  was  committed  by  the  trial  court  in 
admitting  the  confession  under  the  circumstances  disclosed  by 
the  record. 

Our  conclusion  that  the  confession  was  wrongfully  admitted 
renders  it  unnecessary  to  pass  on  the  serious  question  arising 
from  the  ruling  of  the  trial  court  by  which,  in  cross-examina- 
tion, the  accused  was  denied  the  right  to  ask  the  detective  as 
to  an  article  of  personal  property  taken  from  the  prisoner  at 
the  time  the  alleged  confession  was  had.  In  other  words,  that 
the  accused  could  not  bring  out,  by  way  of  cross-examination, 
everything  which  took  place  at  the  time  of  the  alleged  con- 
fession, but  was  compelled,  in  order  to  do  so,  to  make  the 
detective  his  own  witness,  and  therefore  be  placed  in  the  posi- 
tion where  he  could  not  impeach  him.  We  are  also,  as  the 
result  of  our  conclusion  on  the  subject  of  the  confession, 
relieved  from  examining  the  many  other  assignments  of  error, 
except  in  so  far  as  they  present  questions  which  are  likely  to 
arise  on  the  new  trial. 

We  will  now  briefly  consider  the  alleged  errors  of  this 
character. 

By  plea  and  supplemental  plea  in  abatement,  and  by  motion 
to  quash,  defendant,  preliminary  to  the  trial,'  attacked  the 
37 


m 


578 


AMERICAN  CRIMINAL  REPORTS. 


m 


m 


iN 


lit  m 

t:  S    ■  >'l°  -f 


sufficiency  of  the  indictment,  because  one  of  the  grand  jurors 
was  permitted  to  affirm,  and  the  indictment  failed  to  state  that 
such  juror  was  "conscientiously  scrupulous"  of  being  sworn 
and  because  the  indictment  recited  that  it  was  presented  upon 
the  "oath"  of  the  jurors,  when  in  fact  it  was  presented  upon 
the  oath  and  affirmation  of  the  jurors.  At  the  hearing  of  the 
pleas  in  abatement,  it  appeared  that,  when  the  grand  jurors 
were  impaneled,  one  of  them,  upon  being  called  to  be  sworn, 
stated  that  he  affirmed,  and  declined  to  take  an  oath,  and,  after 
his  fellows  had  been  regularly  sworn,  he  was  formally  affirmed 
to  the  same  duties  specified  in  the  oath  administered  to  the 
others.  It  is  also  stated  in  the  record,  followin;^  the  recital  of 
the  issuance  of  venires  for  grand  and  petit  jurors,  that: 

"  In  obedience  to  the  said  order  of  court,  and  to  the  venires 
issued  thereunder,  the  following  named  grand  jurors  attended 
on  the  15th  day  of  October,  A.  D.  1S96.  On  that  day  the  said 
grand  jurors  were  duly  impaneled  as  the  grand  jury  for  the 
October  term  of  this  court,  A.  D.  189G.  All  of  said  grand 
jurors,  being  impaneled  aforesaid,  were  duly  sworn,  except 
grand  juror  William  Merrill,  Junior,  of  West  Newbury,  who 
duly  affirmed,  twenty-one  grand  jurors  being  in  attendance." 

In  section  1  of  the  Revised  Statutes  of  the  United  States  it 
is  provided,  among  other  things,  that  in  determining  the  mean- 
ing of  the  Revised  Statutes,  "  a  requirement  of  an  '  oath '  shall 
be  deemed  complied  with  by  making  affirmation  in  judicial 
form."     Section  800  also  provides  that : 

"  Jurors  to  serve  in  the  courts  of  the  United  States,  in  each 
State  respectively,  shall  have  the  same  qualifications,  subject 
to  the  provisions  hereinafter  contained,  and  be  entitled  to  the 
same  exemptions,  as  jurors  of  the  highest  court  of  law  in  such 
State  may  have  and  be  entitled  to  at  the  time  when  such  jurors 
for  service  in  the  courts  of  the  United  States  are  summoned; 
and  they  shall  be  designated  by  ballot,  lot,  or  otherwise,  accord- 
ing to  the  mode  of  forming  such  juries  then  practiced  in  such 
State  courts,  so  far  as  such  may  be  practicable  by  the  courts  of 
the  United  States  or  the  officers  thereof.  And  for  this  pur- 
pose the  said  courts  may,  by  rule  or  order,  conform  the  designa- 
tion and  impaneling  of  juries  in  substance  to  the  laws  and  usages 
relating  to  jurors  in  the  State  courts,  from  time  to  time  in  force 
in  such  State.  This  section  shall  not  apply  to  juries  to  serve  in 
the  courts  of  the  United  States  in  Pennsylvania." 


BRAM  V.  UNITliD  STATES. 


579 


Pub.  St.  Mass.,  1882,  c.  213,  §  6,  provides  as  follows: 

"Sec.  6.  When  a  person  returned  as  grand  juror  is  con- 
scientiously scrupulous  of  taking  the  oath  before  prescribed, 
he  shall  be  allowed  to  make  affirmation,  substituting  the  word 
'affirm'  instead  of  the  word  'swear,'  and  also  the  words  'this 
you  do  under  the  pains  and  penalties  of  perjury,'  instead  of 
the  words  '  so  help  you  God.' " 

And  section  3  of  chapter  30  of  the  same  statutes  provides  as 
follows,  (page  58) : 

"  In  the  construction  of  statutes  the  following  rules  shall  be 
observed,  unless  such  construction  would  be  inconsistent  with 
the  mar'*"  t  intent  of  the  general  court  or  repugnant  to  the  con- 
text of  the  same  statute,  that  is  to  say:  »  *  *  Fourteenth. 
The  word  '  oath '  shall  include  '  affirmation '  in  cases  where,  by 
law,  an  affirmation  may  be  substituted  for  an  oath." 

The  objection  that  the  indictment  recited  that  it  was  pre- 
sented "upon  the  oath"  of  the  jurors,  when  the  fact  was  that 
it  was  presented  "  upon  the  oath  and  affirmation  "  of  the  jurors, 
is  without  merit.  Waiving  a  consideration  of  the  question 
whether,  under  the  provisions  of  the  statutes  to  which  refer- 
ence has  been  made,  the  word  "  oath  "  might  not  properly  be 
construed  as  meaning  either  "  oath  "  or  "  affirmation,"  the  reci- 
tal alluded  to  was  purely  formal,  and,  if  defective,  was  open 
to  amendment.  The  record  disclosing  the  fact  that  all  of  the 
grand  jurors  were  duly  sworn  except  grand  juror  William 
Merrill,  Jr.,  who  was  "duly  affirmed,"  the  defendant  could  not 
have  been  prejudiced  by  the  form  of  the  statement  made  in 
the  indictment,  and  the  defect,  if  any,  was  rendered  harmless 
by  the  curative  provisions  of  section  1025,  Rev.  St. 

The  further  objection  that  neither  in  the  indictment  nor  in 
the  proof  at  the  hearing  of  the  pleas  in  abatement  was  it  affirm- 
atively stated  or  shown  that  grand  juror  Merrill,  before 
being  permitted  to  affirm,  was  proven  to  have  possessed 
conscientious  scruples  against  taking  an  oath,  is  practically 
concluded  by  the  disposition  made  of  the  objection  just  passed 
upon,  and  is  rendered  nugatory  by  the  terms  of  section  1025, 
Rev.  St.  Further,  the  mode  of  ascertaining  the  existence  or 
non-existence  of  such  conscientious  scruples  was  committed  to 
the  discretion  of  the  officer  who  affirmed  the  juror,  and  such 
attirraation  conclusively  established  that  the  officer  had  prop- 
erly exercised  his  discretion.  Com.  v.  Fisher^  7  Gray,  492j 
8late  v.  Adams,  78  Me.  486. 


m 


^^1^  i){ 


^■'::  i:}mmi 


6S0 


AMERICAN  CRIMINAL  REPORTS. 


The  remaining  assignments  which  we  deem  it  proper  to 
notice  relate  to  the  overruling  of  objections  interposed  to  ques- 
tions propounded  to  certain  witnesses  in  the  character  of 
experts.  Some  of  these  objections  were  made  to  hypothetical 
questions  asked  a  number  of  sailors,  reciting  the  condition  of 
things  assumed  to  have  been  established  by  the  evidence  as 
existing  about  the  time  of  the  killing,  viz.,  the  speed  of  the 
Herbert  Fuller,  the  condition  of  her  sails,  direction  of  wind, 
etc.,  and  inquiry  as  to  the  effect  it  would  have  on  the  vessel  if 
the  wheelman  had  taken  his  hantls  off  the  wheel,  and  whai 
effect  would  be  produced  by  lashing  the  wheel  under  similar 
conditions.  These  questions  were  evidently  intended  to  su])ple- 
ment  the  testimony  of  Brown,  who  swore  that  he  stood  with  both 
hands  on  the  wheel  during  the  time  between  12  and  2  o'clock 
and,  consequently,  when  the  murders  were  committed.  The 
questions  were  competent,  as  the  testimony  sought  to  be 
elicited  was  relevant  to  the  issue.  Aside  from  the  testimony 
of  Brown,  the  evidence  against  Bram  was  purely  circumstan- 
tial, and  it  was  clearly  proper  for  the  government  to  endeavor 
to  establish,  as  a  circumstance  in  the  case,  the  fact  that  another 
person  who  was  present  in  the  vicinity  at  the  time  of  the 
killing  could  not  have  committed  the  crime.  The  testimony 
sought  to  be  adduced  had  this  tendency,  and  the  fact  that  it 
might  operate  indirectly  to  fortify  the  credit  of  such  ])erson  as 
the  witness  in  the  cause  could  not  affect  its  admissibility. 

An  objection  to  a  question  asked  of  a  medical  witness, 
whether,  in  his  opinion,  a  man  standing  at  the  hip  of  a  recum- 
bent person,  and  striking  blows  on  that  person's  head  and 
forehead  with  an  ax,  would  necessarily  be  spattered  witli  or 
covered  with  some  of  the  blood,  was  also  proi)erly  overruled. 
We  think  the  assumed  facts  recited  in  the  question  were  war" 
ranted  by  the  proof  in  the  case,  and  that  the  evidence  souglit 
to  be  elicited  from  the  witness  was  of  a  character  justify in«r 
an  expression  of  opinion  by  the  witness,  the  jury,  after  all, 
being  at  liberty  to  give  to  the  evidence  such  weight  as  in  their 
judgment  it  was  entitled  to.     Ilojyt  v.  Utah,  120  U.  S.  430. 

The  judgment  is  reversed  and  the  cause  remanded,  with 
directions  to  set  aside  the  verdict  and  to  order  a  new  trial. 

Mr.  Justice  Brewer,  dissenting. 

I  dissent  from  the  opinion  and  judgment  in  this  case — 

First,  because  I  think  the  testimony  was  not  open  to  objec- 


mm 


BRAM  V.  UNITED  STATES. 


681 


t!  n.  "A  confession,  if  freely  and  voluntarily  made,  is 
evidence  of  the  most  satisfactory  character."  Ilopt  v.  Peojj/e, 
110  U.  S.  574,  5S4,  reaffirmed  in  Spaif  v.  IT.  S.,  150  U.  S.,  51, 
55.  The  fact  that  the  defendant  was  in  custody  and  in  irons 
does  not  destroy  the  competency  of  a  confession.  "  Confine- 
ment or  imprisonment  is  not  in  itself  sufficient  to  justify  the 
exclusion  of  a  confession,  if  it  appears  to  have  been  voluntary, 
and  was  not  obtained  by  putting  the  prisoner  in  fear  or  by 
promises."  SjMifv.  U.  6'.,  sujpra,  1G8.  See  also  Wilson  v.  U.  aS'., 
162  U.  S.  613-623. 

The  witness  Power,  when  called,  testified  positively  that  no 
threats  were  made  nor  any  inducements  held  out  to  Bram ; 
and  this  general  declaration  he  affirmed  and  reaffirmed  in 
response  to  inquiries  made  by  the  court  and  the  defendant's 
counsel.  The  court  therefore  properly  overruled  the  objec- 
tion at  that  time  made  to  his  testifying  to  the  statements  of 
defendant.  It  is  not  suggested  that  there  was  error  in  this 
ruling,  and  the  fact  that  inducements  were  held  out  is  deduced 
only  from  the  testimony  subsequently  given  by  Power  of  the 
conversation  between  him  and  Uram.  The  first  part  of  that 
conversation  is  as  follows :  "  When  Mr.  J3ram  came  into  my 
office  I  said  to  him :  '  Bram,  wo  are  trying  to  unravel  this 
horrible  mystery.'  I  said  :  '  Your  position  is  rather  an  awk- 
ward one.  I  have  had  Brown  in  this  olRce,  and  he  made  a 
statement  that  he  saw  vou  do  the  murder.'  He  said :  *  He 
could  not  have  seen  me.  Where  was  he  ? '  I  said :  *  He 
states  he  was  at  the  wheel.'  'Well,'  he  said,  *he  could  not  see 
me  from  there.' "  In  this  there  is  nothing  which  by  any  pos- 
sibility can  be  tortured  into  a  suggestion  of  threat  or  a 
temptation  of  hope.  Power  simply  stated  the  obvious  fact 
that  they  were  trying  to  unravel  a  horrible  mystery,  and  the 
further  fact  that  Brown  had  charged  the  defendant  with  the 
crime,  and  the  replies  of  Bram  were  given  as  freely  and  volun- 
tarily as  it  is  possible  to  conceive. 

It  is  strange  to  hear  it  even  intimated  that  Bram,  up  to  this 
time,  was  impelled  by  fear  or  allured  by  hope  caused  in  the 
slightest  degree  by  these  statements  of  Power. 

The  balance  of  the  conversation  is  as  follows :  "  I  said : 
'Now,  look  here,  Bram,  I  am  satisfied  that  you  killed  the  cap- 
tain, from  all  I  have  heard  from  Mr.  Brown.  But,'  I  said, 
'  some  of  us  here  think  you  could  not  have  done  all  that  crime 


■l:{v^;\ 


•m 


;  J  a 


'1^!. 

'i'^"^ 


i 
,   1 


5S2 


AMERICAN  CRIMINAL  REPORTS. 


alone.  If  you  had  an  accomplice,  you  should  say  so,  and  not 
have  the  blame  of  this  horrible  crim!?on  your  own  shoulders.' 
He  said :  '  Well,  I  think,  and  many  others  on  board  the  ship 
think,  that  Brown  is  the  murderer;  but  I  don't  know  anything 
about  it.'  He  was  rather  short  in  his  replies."  And  here,  it 
is  argued,  was  a  suggestion  of  a  benefit — the  holding  out  of  a 
hope  that  a  full  disclosure  might  somehow  inure  to  his  advan- 
tage. To  support  this  contention  involves  a  refinement  of 
analysis  which,  while  it  may  show  marvelous  metaphysical  abil- 
ity,  is  of  little  weight  in  practical  affairs.  But,  even  if  it  did 
carry  any  such  improper  suggestion,  it  was  made  at  nearly  the 
close  of  the  conversation;  and  that  this  suggestion  then  made 
had  a  retroactive  efl'ect,  and  transformed  the  previous  voluntary 
statements  of  Bram  into  statements  made  under  the  influence 
of  fear  or  hope,  is  a  psychological  process  which  I  am  unable 
to  comprehend.  The  only  reply  which  Bram  made  to  the 
question  containing  this  supposed  improper  suggestion  was 
this :  "  Well,  I  think,  and  many  others  on  board  the  ship 
think,  that  Brown  is  the  murderer;  but  i  don't  know  anything 
about  it."  Can  it  for  a  moment  be  thought  that  such  a  reply 
was  so  significant  that  permitting  it  to  go  to  the  jury  compels 
the  putting  at  naught  this  protracted  trial,  and  overthrowing 
the  deliberate  verdict  of  the  twelve  men  who  heanl  the  evi- 
dence and  condemned  defendant?  With  all  respect  to  my 
brethren  who  are  of  a  difl'erent  opinion,  I  can  but  tliink  that 
such  a  contention  is  wholly  unsound,  and  that  in  all  this  con- 
versation with  Bram  there  was  nothing  of  suificient  importance 
to  justify  the  reversal  of  the  judgment. 

Again,  there  is  a  lack  of  any  proper  objection  or  exception; 
and,  if  there  is  any  one  thing  which  may  be  considered  as  set- 
tled in  all  appellate  courts,  it  is  that  an  error  in  the  admission 
of  testimony  will  not  be  considered  unless  there  was  a  specific 
objection  and  exception  at  the  trial.  "  To  authorize  any  objec- 
tion to  the  admission  or  exclusion  of  evidence,  or  to  the  giving 
or  refusal  of  any  instructions  to  the  jury,  to  be  heard  in  this 
court,  the  record  must  disclose  not  merely  the  fact  that  the 
objection  was  taken  in  the  court  below,  but  that  the  parties 
excepted  at  the  time  to  the  action  of  the  court  thereon." 
JIutehins  v.  King,  1  Wall.  53,  60;  U.  S.  v.  McMasters,  4  Wall. 
680,  682.  "  Our  power  is  confined  to  exceptions  actually  taken 
at  the  trial."    Bail  way  Co.  v.  Heck,  102  U.  S.  120.     See,  also, 


BRAM  V.  UNITED  STATES. 


583 


Moore  V.  Bank,  13  Pet.  302;  Camden  v.  Doremus,  3  How.  515; 
Zeller'a  Lessee  v.  Eckert,  4  How.  289,  297;  Phelps  v.  Mayer,  15 
How.  100;  Dredge  v.  Forsyth,  2  Black,  503;  Young  v.  Martin, 
8  Wall.  354;  Belk  v.  Meagher,  104  U.  S.  279;  Ilanna  v.  Maas, 
122  U.  S.  24;  White  v.  Barher,  123  U.  S.  392,  419;  Steioart  v. 
Ranche  Co.,  128  U.  S.  383;  Anthony  v.  lla'droad  Co.,  132  U.  S. 
172;  Block  v.  Darling,  140  U.  S.  234;  Bogk  v.  Gassert,  149  U. 
S.  17. 

It  is  true  these  were  civil  cases,  for  it  is  only  in  the  later 
history  of  this  court  that  we  have  had  jurisdiction  of  writs  of 
error  in  criminal  cases;  but  the  law  is  equally  applicable  to  the 
latter.  "  It  is  the  duty  of  counsel  seasonalply  to  call  the  atten- 
tion of  the  court  to  any  error  in  impaneling  the  jury,  in  admit- 
ting testimony,  or  in  any  other  proceeding  during  the  trial, 
by  which  his  rights  are  prejudiced,  and,  in  case  of  an  adverse 
ruling,  to  note  an  exce])tion."  Alexander  v.  U.  S.,  138  U.  S. 
353, 355.  "  The  general  rule  undoubtedly  is  that  an  objection 
should  be  so  framed  as  to  indicate  the  precise  point  upon 
which  the  court  is  asked  to  rule."  Sparfv.  U.  S.,  156  U.  S. 
51:  Holder  v.  U.  S.,  150  U.  S.  91;  Tucker  v.  U.  S.,  151  U.  S. 
164. 

It  is  true  the  defendant  objected  to  the  adn>ission  of  the 
conversation  before  it  was  given;  but,  upon  the  state  of  facts 
as  then  presented,  unciuestionably  the  trial  court  ruled  prop- 
erly in  permitting  the  witness  to  testify,  for  he  positively 
declared  that  there  was  neither  threat  nor  promise,  intimida- 
tion or  inducement.  If  it  be  true,  as  the  court  now  holds, 
that  in  the  progress  of  his  testimony  it  was  developed  that 
he  did  make  a  statement  which  carried  an  inducement — a  sug- 
gestion of  hope — it  was  then  the  duty  of  the  defendant  to  call 
the  attention  of  the  court  to  the  matter,  either  by  objecting  to 
any  further  disclosures  of  the  conversation,  or  else  by  a  motion 
to  strike  out.  Nothing  of  the  kind  took  place.  Defendant 
was  apparently  content  to  let  all  of  the  subsequent  conver- 
sation come  in.  Can  it  be  held  that  the  court  erred  in  not  of 
its  own  motion  stopping  the  witness,  or  striking  out  the  testi- 
mony, or  instructing  the  jury  to  disregard  it,  when  defend- 
ant asked  nothing  of  the  kind  ?  Surely,  by  this  decision  we 
practically  overrule  the  long  line  of  authorities  heretofore 
cited  affirming  the  necessity  of  calling  the  attention  of  the 
trial  court  to  the  specific  matter,  obtaining  its  ruling  thereon, 


>■■;;•;  t- 


5  84 


AMERICAN  CRIMINAL  REPORTS. 


■r   .■•[•.  >v 


and  saving  an  exception  thereto  before  there  is  any  jurisdiction 
in  this  court  to  review.  Nor  is  this  a  mere  technical  and 
arbitrary  rule  which  may  be  dispensed  with  wlienovcr  the 
exigencies  of  any  case  seem  to  demand,  and  in  no  other  way  a 
ground  for  reversal  can  be  discovered.  It  may  bo,  and  undoubt- 
edly often  is  the  case,  that,  though  incompetent  testimony  be 
given,  the  defendant  prefers  that  it  shall  remain,  in  order,  for 
certain  purposes,  to  take  advantage  of  it  in  the  argument  before 
the  jury.  Can  it  be  possible  tJiat  he  may  obtain  this  advan- 
tage, and,  having  obtained  and  used  it,  insist  that  because 
of  such  incompetent  testimony,  he  is  entitled  to  a  reversal  of 
the  judgment  against  him?  Wilson  v.  U.  S.^  1(52  IJ.  S.  013- 
624.  Who  shall  say  that  this  defendant,  though  at  iirst  object- 
ing to  any  testimony  respecting  his  statements,  yet,  after 
hearing  what  the  witness  said,  did  not  prefer  that  sucii  testi- 
mony remain,  as  it  disclosed  that  at  the  very  first  moment  he 
was  informed  that  Brown  charged  him  with  the  crime,  he  pro- 
tested that  Brown  was  not  in  a  position  where  he  could  see 
who  did  the  killing ?  Indeed,  for  anything  in  this  record  to 
the  contrary,  he,  when  a  witness  in  his  own  behalf,  may  have 
given  the  same  version  of  the  conversation,  and  admitted  that 
his  statements  were  voluntarily  made.  Who  shall  say  that  ho 
did  not  wish  to  argue  before  the  jury  that  the  claim  made  of 
Brown's  inability  to  see  what  took  place  was  not  an  excuse  sug- 
gested only  by  the  exigencies  of  the  trial,  but  was  presentod  at 
the  very  first  moment  of  the  charge;  and  if  he  was  willing  to 
let  the  testimony  remain,  and  have  all  the  advantage  wliici^ 
he  could  take  of  it  in  an  argument  before  the  jury,  can  it  bo 
that  he  can  now  come  to  this  court  and  say,  "True,  I  did  not 
object  to  this  specific  testimony,  nor  ask  to  have  it  stricken 
out,  but  it  was  incompetent,"  and  obtain  a  reversal  on  the 
ground  of  its  admission? 

I  dissent,  therefore :  First,  because  I  think  the  testimony 
Avas  properly  received;  and,  secondl3',  because  no  motion  was 
made  to  strike  it  out,  and  no  exception  taken  to  its  admission. 

The  Chief  Justice  and  Mr.  Justice  Buown  concur  in  this 
dissent. 


";      r 


STATE  V.  SCOTT. 


685 


State  v.  Scorr. 

(49  La.  Ann.  253.) 
JIuudek:    Inmnity— Burden  of  proof  . 

1.  The  law  prpsuininR  Hanity,  the  burden  is  on  the  accused  urging  his  insan- 

ity as  a  defense  to  prove  it. 

2.  That  proof  must  satisfy  tlie  jury  the  accused  was  not  of  sane  mind  at  the 

time  of  tlieact  cliarged.  They  sliould  consider  all  the  testimony  before 
them,  whether  produced  by  the  accused  or  the  State,  and  give  due 
wei,i;ht  to  the  presumption  of  sanity.  If,  on  the  whole  testimony,  and 
giving  to  the  presum|»tion  of  sanity  its  full  operation,  they  are  satisfied 
the  accused  was  insane  when  the  act  was  committed,  they  should 
acquit;  but,  if  not  thus  satisfied,  they  should  deem  the  accused  sane, 
and  responsible. 

Appeal  from  Criminal  District  Court,  Parish  of  Orleans; 
James  C.  Moiso,  Judge. 

John  Scott  was  convicted  of  manslaughter  and  appeals. 
Keversed. 


Charles  C.  Lnzenlxrg  and  Bernard  Tltche,  for  appellant. 

Milton  J.  Cunninij/ui/n,  Attorney-General;  Rohert  H.  MarVy 
District  Attorney,  and  John  J.  Finney^  Assistant  District 
Attorney,  for  the  State. 

Mir.LKR,  J.  The  accused,  indicted  for  murder,  convicted,  and 
sentenced  for  manslaughter,  takes  this  appeal.  Tiie  accused 
relies  on  a  number  of  exceptions  to  the  charge  of  the  judge. 
But  the  question  sought  to  be  raised  in  nearly  all  is  as  to  the 
correctness  of  the  charge  in  respect  to  the  defense  of  insanity, 
and  the  refusal  of  the  instruction  on  that  subject  requested  on 
behalf  of  the  accused.  On  this  defense  of  insanity  the  instruc- 
tion in  part  was:  "  Every  man  is  presumed  to  be  sane,  and  to 
possess  a  sufficient  degree  of  reason  to  be  res))onsible  for  his 
crime,  until  the  contrary  be  satisfactorily  proved.  When  insan- 
ity is  set  up  as  a  defense  for  crime,  it  must  be  proved  as  a 
substantive  fact  b\'  the  party  alleging  it,  on  whom  lies  the 
burden  of  proof.  The  degree  of  proof  must  be  by  a  prepon- 
derance of  evidence.  This  does  not  mean  a  preponderance  of 
witnesses,  but  it  means  that,  taking  all  of  the  evidence  into 
consideration,  the  weight  and  etfect  of  it  is  to  satisfy  3'our 


for 


M 


It. 


686 


AMERICAN  CRIMINAL  REPORTS. 


minds  that  at  tho  time  of  the  commission  of  the  act  the  pris- 
oner was  insane.    The  prosumjition  of  sanity  must  bo  over- 
tiirown,  and  this  presumption  exists  with  as  mucli  force  as  the 
presumption  of  innocence.    As  the  law  presumes  a  man  to  be 
innocent  until  he  is  proven  ffuilty,  if  there  is  a  reasonable  doubt 
as  to  his  guilt,  this  degree  of  proof  as  to  guilt  does  not  over- 
come the  presumption  of  innocence,  and  he  should  be  ac(|U!tttHl. 
The  presumption  of  sanity  is  a  logical  parallel  to  the  above 
rule.    Men  are  presumed  to  be  sane  until  they  are  proven 
insane.    If  there  is  a  reasonable  doubt  as  to  their  sanity,  this 
degree  of  proof  as  to  insanity  does  notoverthrow  the  i)resuiiip- 
tion  of  sanity,  and  the  jury  shouhl  find  him  sane.    TIh'so  two 
presumptions  of  law  as  to  'innocence'  and  'sanity'  stand  upon 
the  same  footing.     The  burden  is  upon  tho  State  to  overcome 
the  presumption  of  innocence,  while  the  burden  is  ujjon  the 
defendant  to  overcome  the  presumption  of  sanity  when  insanity 
is  set  up  as  a  defense,  and  both  presumptions  should  be  over- 
come beyond  reasonable  doubt."     To  tills  ])art  of  the  charge 
the  defendant  excepted  as  ambiguous,  contradictory  and  not  a 
correct  exposition  of  law.     It  is  urged  on  us  that  this  portion 
of  the  charge  placed  before  the  jury  for  their  guidance  two 
diirerent  rules  of  proof — one  tiiat  tho  prei)onderance  of  testi- 
mony sufficed,  and  the  other  that  proof  beyond  a  reasona!  le 
doubt  was  required  to  establish  insanity  as  a  defense.    Our 
decision  is  controlled  by  a  more  important  factor.     The  objec- 
tion in  varied  forms  presented  by  the  other  bills  is,  in  ell'ect, 
that  the  charge  is  erroneous  in  its  requirement  of  the  degree 
of  proof  requisite  to  support  the  defense  of  insanity.    The 
charge  recognizes  the  distinction  between  the  ]Mepon(lerance 
of  proof  and  that  which  excludes  all  reasonable  doubt,  and 
instructs  that  the  burden  is  on  the  siccused  to  pi'ovo  beyond  all 
reasonable  doubt  he  was  not  sane  at  the  time  of  the  commission 
of  the  act  charged.     The  charge  follows  that  sustained  by  our 
predecessors  in  State  v.  De  Hance,  3+  La.  Ann.  18G,  and  in' 
State  V.  Burns,  25  La.  Ann.  302,  and  State  v.  Coleman,  27  La. 
Ann.  691.     Without  the  sanity  of  the  accused,  there  can  bo  no 
guilt.     Humanity  and  the  law  alike  concur  in  this,  and  utttily 
exclude  punishment  for  crime  when  there  is  no  moral  respon- 
sibility of  the  accused.     It  is  familiar  that  guilt  must  be  proved 
beyond  a  reasonable  doubt  before  punishment  can  be  inllictcd. 
Yet  the  charge  in  this  case  places  on  the  accused  the  burden 


STATE  V.  SCOTT. 


587 


of  disproving  one  of  the  constituents  of  guilt,  and  exacts  of  him 
tlio  highest  order  of  proof  known  to  the  law.  In  both  aspects 
the  proposition  has  been  controverted  by  text  writers  and  (lecis- 
ions.  The  prejwnderance  of  proof  is  recognized  as  that  of  a 
character  to  satisfy  the  mind,  though  it  be  not  free  from 
reasonable  doubt.  This  preponderating  proof  is  enough  in 
civil  cases  to  authorize  a  finding  in  favor  of  the  party.  The 
terms  are  of  constant  use  in  the  administration  of  the  criminal 
law.  The  charge  in  this  case  implies,  if  it  does  not  express, 
that  though  there  may  be  a  preponderance  of  testimony  before 
the  jury  to  show  that  the  accused  was  insane  at  the  time  of 
the  act,  yet  they  may  convict.  It  is  not  easy  to  conceive  that 
witli  this  preponderating  proof  they  can  deem  guilt  established 
beyond  a  reasonable  doubt — the  prerequisite  of  any  conviction. 
Can,  then,  this  charge  be  sustained,  which  exacts  punishment 
upon  preponderating  proof  producing  not  only  a  reasonable 
doubt  of  guilt,  but  preponderating  to  carry  the  conclusion  that 
no  guilt  can  exist  because  of  the  absence  of  that  moral  account- 
ability, the  basis  of  all  punishment  for  crime.  Between  hang- 
ing the  maniac  or  bringing  to  the  scaffold  one  whose  insanity 
is  established  by  a  preponderance  of  testimony  before  the  jury 
that  pronounces  him  guilty,  is  a  difference  in  degree,  not  of  prin- 
ciple. A  conviction,  when  insanity  is  thus  proved,  this  charge 
sanctions.  If  we  turn  to  the  authority  of  text  books  and  decis- 
ions, it  must  seem  difficult  to  maintain  the  charge  conceding 
all  due  weight  to  the  decisions  of  our  predecessors  and  types 
of  that  class  in  some  of  the  decisions  of  the  courts  of  other 
states.  In  State  v.  Spencer,  21  N.  J.  Law,  196,  the  court 
instructed,  if  in  weighing  testimony  of  insanity  against  that 
of  sanity  the  scales  are  balanced,  or  so  nearly  poised  as  to 
leave  a  reasonable  doubt  of  insanity,  the  accused  was  to  be 
deemed  san.i.  This  decision,  that  sustains  punishment  when 
guilt  is  ascertained  by  the  balanced  or  nearly  poised  scale,  is 
in  marked  co'  trast  with  the  rule  that  exacts  proof  of  guilt 
beyond  all  reasonable  doubt.  In  one  of  the  text-books  there 
is  the  comment  that  the  decision  has  been  departed  from  in 
the  New  Jersey  courts.  2  Bish.  Cr.  Proc.,  Sec.  671.  The  case 
of  Reg.  V.  Layton,  4  Cox  Cr.  Cas.  149,  is  cited  by  the  state  as 
supporting  the  charge  under  consideration.  But,  as  we 
gather  that  decision  from  the  report,  the  instruction  was 
that  sanity  was    to    be    presumed  till    the  contrary    was 


•■i  ■ 


n  ^.*^ 


*'W 


m 


m 


588 


AMERICAN  CRIMINAL  REPORTS. 


proved,  and  the  question  for  the  jury  was  whether  the 
accusod  had  proved  to  their  satisfaction  he  was  not  of  sound 
mind.  There  was  no  requirement  of  proof  beyond  that  point; 
i.  e.,  the  satisfaction  of  the  jury.  All  the  decisions  tending  to 
exact  from  the  accused  a  higher  degree  of  proof  have  had  our 
attention.  On  the  other  hand,  the  text-books  and  the  weight 
of  the  decisions,  while  affirming  that  the  burden  of  proof  of 
insanity  is  on  the  accused,  maintain  that  the  proof  suiiices 
that  establishes  insanity  to  the  satisfaction  of  the  jury.  In  1 
Waterman's  Archbold,  there  is  an  array  of  authority;  with 
others,  the  case  of  M-Naghten.  10  Clark  &  F.  200,  is  cited,  much 
discussed  in  the  house  of  lords,  and  led  to  questions  pro- 
pounded to  the  judges  as  to  the  terms  in  which  the  question 
of  insanity  should  be  submitted  to  the  jury.  The  answer  was 
that  the  accused  was  to  be  presumed  sane  until  the  contrary 
was  proved  to  the  satisfaction  of  the  jury.  That  charge  is 
brief,  plain,  and  easily  understood.  It  is  commended  in  all 
the  text-books.  It  exacts  no  greater  degree  of  proof  than 
that  required  to  satisfx^  the  mind,  and  precludes  any  acquittal 
for  insanity  when  the  proof  does  not  convince  tiie  jury  on  the 
point  of  inquiry.  Other  authority  arrayed  by  Mr.  Archbold 
is  to  the  effect  that  the  testimony  of  insanity  must  be  suffi- 
cient to  overrule  the  presumption  of  sanity,  and  satisfy  the  jury 
the  accused  was  not  sane;  or,  as  put  in  another  form,  to  sus- 
tain the  defense  the  evidence  must  convince  the  jury  that 
when  the  act  was  done  the  prisoner  was  not  conscious  he  was 
committing  crime.  1  Archb.  Cr.  Prac.  &  PI.  pp.  37,  38,  et  seq. 
Other  decisions  have  qualified  the  proof  to  be  administered 
by  the  prisoner  as  a  preponderance  of  the  whole  evidence  that 
he  was  insane  when  he  committed  the  act.  Com.  v.  Eldji,  7 
Gray,  583;  Com.  v.  Rogers,  7  Mete.  (Mass.)  500,  5U().  The 
charge  sanctioned  in  U.  S.  v.  McGlue,  1  Curt.  1,  was  that,  the 
burden  resting  on  the  accused  to  prove  insanity,  the  'vliole 
evidence  must  satisfy  the  jury  the  prisoner  was  insane,  other- 
wise he  should  not  be  acquitted.  In  Whart.  Cr.  Law,  the 
text  is,  the  defense  of  insanity  must  be  proved  by  the  accused 
as  an  jindependent  fact,  and  he  alludes  to  the  Spencer  case, 
antl  to  decisions  on  the  other  hand  maintaining  the  sufficiency 
of  preponderating  proof  of  insanity.  In  the  late  edition  of 
Wharton  this  preponderating  proof  is  stated  to  be  all  that  is 
required.    Whart.  Cr.  Law,  Sec.  711,  and  notes;  Id.  (10th  Ed.) 


STATE  V.  SCOTT. 


589 


Sec.  62,  and  notes.  It  is  Mr.  Bishop's  view,  reviewing  all  the 
authorities,  that  it  is  never  incumbent  on  the  state  to  give 
affirmative  evidence  of  the  sanity  of  the  accused,  but  if  denied 
by  proof  administered  by  him  the  jury  alone,  with  the  pre- 
sumption of  sanity,  must  consider  all  the  evidence;  and  if  then 
they  entertain  a  reasonable  doubt  of  whether  the  accused  did 
the  act  in  a  sane  state  of  mind,  they  are  to  acquit,  otherwise 
they  are  to  convict.  1  Bish.  Cr.  Proc,  Sec.  534.  The  same  view 
substantially  has  been  announced  quite  recently  by  the 
Supreme  Court  of  the  United  States,  and  is  thus  expressed  in 
the  head  note :  "  No  man  is  to  be  deprived  of  his  life  under  the 
forms  of  law  unless  the  jurors  who  are  to  try  him  are  able  on 
their  consciences  to  say  that  the  evidence  before  them, 
whether  adduced  on  his  behalf  or  by  the  state,  is  sufficient  to 
show  beyond  a  reasonable  doubt  every  essential  of  the  crime;" 
and  mental  competency  to  distinguish  between  right  and 
wrong  was,  of  course,  recognized  as  one  of  the  constituents  of 
the  crime.  Davis  v.  U.  S.,  160  U.  S.  469.  In  the  light  of 
principle  and  authority,  we  can  not  assent  to  the  proposition 
affirmed  by  this  charge  that  with  preponderating  testimony 
of  the  insanity  of  the  accused  they  may  convict  on  the  theory 
that  a  higher  order  of  proof  is  required.  In  this  view  the  sen- 
tence must  be  reversed. 

In  view  of  the  new  trial,  we  deem  it  proper  to  say,  with 
respect  to  other  objections  reserved  by  the  accused,  that  the 
charge  in  a  criminal  case  should  be  restricted  to  the  questions 
fairly  arising  on  the  testimony.  In  our  view,  the  explanation 
of  insanit}',  whether  it  be  termed  temporary  or  epileptic  in  its 
character,  was  sufficient  to  meet  the  inquiry  arising  on  the 
testimony,  though  an  addition  as  to  that  form,  produced  by 
the  absence  of  will  power,  would  be  appropriate.  Whart.  &  S. 
Med.  Jur.  p.  38.  We  think  it  well  to  add,  too,  that  on  the  issue 
of  insanity,  testimony  of  the  conduct  of  the  accused  before  and 
af .  r  the  act  is  proper  to  go  to  the  jury  under  proper  instruc- 
tions. 2  Greenl.  Ev.,  Sec.  371.  While  the  misuse  or  abuse  of 
this  defense  of  insanity  can  not  affect  the  legal  principle  on 
which  the  defense  is  allowed,  we  are  deeply  impressed  Avith 
the  importance  of  guarding  against  the  failure  of  justice  arising 
from  the  frequent  interposition  without  foundation  of  this 
defense  of  insanity,  characterized  in  one  of  the  decisions  as  the 
last  resort  of  desperate  criminals.    We  have  already  suggested 


i 


fi 

]  '  i  , 


!''.',''..'^'':'  g'^Vrt  Vf; 


.[1-1  tlfvfH 


%n 


590 


AMERICAN  CRIMLVAL  REPORTS. 


the  charge  should  be  restricted  within  the  scope  of  the  ques- 
tions fairly  arising  on  the  testimony,  and  not  extend  to  forms, 
real  or  supposed,  of  mental  disorder,  not  the  subjects  of  in(|uiry 
under  the  testimony  laid  before  the  jury.  The  charge  should 
be  clear,  and  avoid  unnecessary  qualifications.  We  think 
Prof.  Greenleaf  's  summary  of  the  essentials  of  the  instruction 
as  to  the  burden  and  degree  of  proof  required  on  the  defense 
of  insanity  meets  substantial  requirements.  2  Greenl.  Ev.,  Sec. 
373.  We  think  it  will  suffice  if  the  jury  are  told,  in  effect, 
that  the  burden  of  proof  is  on  the  accused  to  establish,  by  clear 
and  convincing  proof,  the  insanity  he  urges  as  a  defense;  that 
the  presumption  of  sanity  is  to  be  taken  into  consideration,  and 
exercise  its  full  influence,  along  with  all  the  testimony  before 
them,  whether  produced  by  the  accused  or  by  the  state;  and  if, 
on  the  consideration  of  the  whole  testimony,  giving  due  weight 
to  the  presumption  of  sanity,  they  are  satisfied  the  accused 
was  not  of  sane  mind  when  the  act  charged  was  committed, 
they  are  to  acquit,  but  if  not  thus  satisfied,  they  are  to  hold 
the  accused  sane  and  responsible.  With  clear  instruction  as 
to  the  presumption  of  sanity,  the  burden  of  disproving  it,  and 
that,  in  order  to  acquit  on  the  ground  of  insanity,  the  jury 
must  be  satisfied  of  that  insanity  by  clear  and  convincing  ])roof, 
it  seems  to  us  there  should  bo  no  convictions  of  insane,  nor 
misapprehensions  by  the  jury  of  their  duty  to  hold  the  accused 
sane  and  responsible,  when  not  satisfied  of  the  insanity  urged 
in  his  defense.  For  the  reasons  given  in  this  opinion,  it  is  now 
ordered,  adjudged  and  decreed  that  the  sentence  of  the  accused 
be  annulled  and  set  aside;  that  he  be  again  put  on  trial  on  the 
indictment,  and  be  held  in  custody  to  abide  the  verdict  on  the 
new  trial. 


mi 


Watkins,  J.  (concurring).  The  defendant  was  indicted  for 
murder,  convicted  of  manslaughter,  and  sentenced  to  impris- 
onment in  the  penitentiary  for  a  term  of  fifteen  years,  and 
from  that  sentence  appeals.  Under  a  plea  of  not  guilty,  the 
defendant  sought  to  prove  insanity  as  a  defense;  but  the  jury 
evidently  regarded  the  proof  insufficient.  The  principal  ques- 
tion argued  at  the  bar  and  presented  in  the  briefs  of  counsel 
on  either  side  is  as  to  what  was  the  proper  instruction  for  the 
trial  judge  to  have  given  to  the  jury  with  regard  to  the  degree 
of  proof  necessary  for  them  to  acquit  the  defendant  on  the 


4 


■:r;i: 


STATE  V.  SCOTT. 


591 


ground  of  insanity.  In  the  course  of  his  written  chart^e  the 
trial  judge,  among  other  things,  gave  to  the  jury  the  following 
instructions,  substantially,  viz.:  That  the  presumption  of  sanity 
"exists  with  as  much  force  as  the  presumption  of  innocence; " 
and  that  the  presumption  of  sanity  can  only  be  overcome  by 
the  same  degree  of  proof  that  is  necessary  to  overcome  that  of 
innocence.  That,  as  the  law  presumes  a  man  to  be  innocent 
until  he  is  proven  guilty,  if  there  be  a  reasonable  doubt  as  to 
his  guilt,  the  degree  of  proof  as  to  his  guilt  does  not  overcome 
the  presumption  of  innocence,  and  he  should  be  acquitted. 
The  presumption  of  sanity  is  a  logical  parallel  to  the  above 
rule.  Every  one  is  presumed  to  be  sane  until  he  is  proven 
insane.  If  there  is  a  reasonable  doubt  as  to  a  man's  sanity, 
the  degree  of  proof  as  to  insanity  does  not  overthrow  the  pre- 
sumption of  sanity,  and  the  jury  should  find  him  sane.  These 
two  presumptions  of  law  as  to  innocence  and  sanity  stand  upon 
the  same  footing.  The  burden  is  upon  the  state  to  overcome 
the  presumption  of  innocence;  while  the  burden  is  upon  the 
defendant  to  overcome  the  presumption  of  sanity,  when  insn  nity 
is  set  up  as  a  defense.  "  Both  presumptions  should  be  over- 
come beyond  a  reasonable  doubt."  To  these  instructions 
defendant's  counsel  excepted  on  the  ground  that  same  were 
contradictory  and  conflicting,  and  reserved  a  bill  of  exceptions 
thereto.  An  examination  of  a  large  number  of  decisions  of 
the  courts  of  different  states,  as  well  as  those  of  the  courts  of 
England,  shows  that  there  are  three  distinct  and  well  defined 
theories  on  the  subject,  viz. :  First,  that  the  proof  adminis- 
tered must  srtisfy  the  minds  of  the  jury  beyond  a  reasonable 
doubt  that  the  defendant  was  insane  at  the  time  of  the  com- 
mission of  the  act;  second,  that  the  burden  of  proof  is  upon 
the  defendant  to  show  by  a  fair  preponderance  of  evidence 
that  he  was  incapable  of  distinguishing  right  from  wrong,  and, 
consequently,  insane;  third,  that  if,  upon  the  whole  of  the  evi- 
dence adduced,  that  by  the  prosecution  as  well  as  that  by  the 
defendant,  there  is  left  in  the  minds  of  the  jury  a  doubt  as  to 
the  sanity  of  the  accused,  it  is  their  duty  to  resolve  that  doubt 
in  favor  of  the  defendant,  and  acquit  him.  We  will  make  an 
examination  and  analysis  of  the  authorities  on  each  theory 
separately,  and  by  that  means  ascertain  in  favor  of  which  one 
they  preponderate. 
1.    On  this  theory  the  leading  American  authority  is  State  v. 


::\M 


m 


■nhl 

M 


I 


592 


AMERICAN  CRIMINAL  REPORTS. 


Spence)',  21  N.  J.  Law,  196,  and  we  make  the  followin<^  quota- 
tion therefrom,  viz.:  "  When  the  evidence  of  the  insanitv  on 
the  one  side  and  of  sanity  on  the  other  leaves  the  scale  in 
equal  balance,  or  so  nearly  poised  that  the  jury  have  a  rea- 
sonable doubt  of  his  sanity,  then  a  m  an  is  considered  sane,  and 
responsible  for  what  he  does."  Again :  '•  Proof  of  insanity  at 
the  time  of  committing  the  act  ought  to  be  so  clear  and  satis- 
factory, in  order  to  acquit  him  on  the  ground  of  insanity,  as 
the  proof  of  committing  the  act  ought  to  be,  in  order  to  find 
the  sane  man  guilty."  Again:  "If,  in  your  opinion,  it  is 
clearly  proved  that  the  prisoner  at  the  bar,  at  the  time  of  the 
homicide,  was  unconscious  that  what  he  did  was  wrong,  and 
that  he  ought  not  to  do  it,  you  must  acquit  him  on  the  ground 
of  insanity;  but  if,  in  your  opinion,  this  is  not  established 
beyond  a  reasonable  doubt,  then  you  must  find  him  guilty  of 
the  act,  and  proceed  to  investigate  the  nature  of  the  homicide." 
This  case  has  been  quoted  and  followed  by  several  of  the 
courts  of  other  states,  particulai'ly  in  the  following,  viz.:  State 
V.  Thomas,  Iloust.  Cr.  Cas.  511;  Jlodge  v.  State,  26  Fla.  11; 
State  V.  Crauford,  11  Kan.  32;  Ballard  v.  State,  19  Neb.  609; 
Wright  V.  People,  4  Neb.  407;  Faulkner  v.  Territory  (N.  M.), 
30  Pac.  905;  State  v.  Mcintosh,  39  S.  C.  97;  State  v.  Patter- 
son, 45  Vt.  308;  Eevoir  v.  State,  82  Wis.  295;  Ililler  v.  State, 
3  Wyo.  667.  It  will  be  observed  that  this  theory  has  found 
favor  in  but  comparatively  few  of  the  states. 

2.  On  the  second  theory,  those  first  in  importance  are  the 
decisions  of  the  English  courts,  and  to  illustrate  we  have 
made  extracts  from  the  following  cases,  viz.:  From  Perj.  v. 
Stokes,  3  Car.  &  K.  185,  we  maite  the  following  selection,  viz.: 
"  If  the  prisoner  seeks  to  excuse  himself  upon  the  plea  of 
insanity,  it  is  for  him  to  make  it  clear  that  he  was  insane  at  the 
time  of  committing  the  offense  charged.  The  07ins  rests  on 
him;  and  the  jury  must  be  satisfied  that  he  actually  was 
insane.  If  the  matter  is  left  in  doubt,  it  will  be  their  duty 
to  convict  him;  for  every  man  must  be  presumed  to  be  respon- 
sible for  his  own  acts  until  the  contrary  is  clearly  shown." 
So  in  Peff.  v.  Layton,  4  Cox  Cr.  Cas.  149,  the  court  said  that 
the  question  for  the  jury  was,  "  not  whether  the  person  was  of 
sound  mind,  but  whether  he  had  made  out  to  their  satisfaction 
that  he  was  not  of  sound  mind."  M' Naghteri) s  Case,  10  Chirk 
&  F.  200,  wherein  the  defendant  was  discharged  by  a  jury  as 


STATE  V.  SCOTT. 


593 


not  guilty  of   murder  "on  the  ground  of  insanity,"  having 
created  considerable  discussion,  was  brought  to  the  attention 
of  the  house  of  lords,  and  the  judges  were  summoned  to  give 
their  opinions  on  the  question  of  insane  delusions  giving 
immunity  for  acts    punishable    criminally,  and   Lord  Chief 
Justice  Tindall,  speaking  for  the  court,  said  that  tl.e  jur^' 
should  be  instructed  that  "  every  man  is  presumed  to  be  sane, 
and  to  possess  a  sufficient  degree  of  reason  to   be  responsible 
for  his  crimes,  until  the  contrary  be  proved  to  their  satisfac- 
tion; and  that,  to  establish  a  defense  on  the  ground  of  insan- 
ity, it  must  be   clearly  proved  that  at  the  time  of  the  com- 
mitting of  the  act  the  party  accused  was  laboring  under  such 
a  defect  of  reason,  from  disease  of  the  mind,  as  not  to  know 
the  nature  and  quality  of  the  act  he  was  doing,"  etc.     That 
case  has  been  frequently  cited  in  the  decisions,  English  and 
American,  and  is  often  quoted  with  favor  by  text  writers  in 
treating  of   the  subject  of  insanity.     Dr.  •  Wharton,  in   his 
treatise   on    Criminal    Evidence,  cites    the  case  of  State  v. 
Spencer,  21  N.  J.  Law,  190, — tlie  leading  case  in  favor  of  the 
first  theory  we  have  outlined, — and  several  leading  English 
cases,  and  M'Naghten's  case  among  the  number,  as  the  rep- 
resentative of  the  second  theory;  and  then  he  supplements  the 
statement   with  the  observation  that  the  theory  once  enter- 
tained by  the  English  courts  has  been  so  far  modified  that  the 
rule  announced  in  M'Naghten's  case,  that  the  jury  is  to  be  gov- 
erned by  the  preponderance  of  evidence,  is  the  prevalent  opin- 
ion in  England.    Whart.  Cr.  Ev.,  Sees.  337, 33S.    But  the  modi- 
fication of  the  theory  is  very  readily  observed  by  comparing  the 
opinion  of  the  judges  in  M'Naghten's  case  with  that  of  Lord 
Mansfield  in  Billingham's  case,  cited  in  Russell's  treatise  on 
Crimes,  as  will    be  shown  in  the   subjoined  extract,  viz. : 
"  In  Billingham's  case,  who  was  tried  for  the  murder  of  Mr. 
Percival,  a  part  of  the  prisoner's  defense  was  insanity;  and 
upon  this  part  of  the  case  Mansfield,  C.  J.,  stated  to  the  jury 
tiiat,  in  order  to  support  such  a  defense,  it  ought  to  be  proved 
by  the  most  distinct  and  unquestionable  evidence  that  the 
prisoner  was  incapable  of  judging  between  right  and  wrong; 
that  in  fact  it  must  be  proved   beyond  all  doubt  that  at  the 
time  he  committed  the  atrocious  act  with  which  he  stood 
charged  he  did  not  consider  that  murder  was  a  crime  against 
the  laws  of  God  and  nature;  and  there  was  no  other  proof  of 
88 


5U 


AMERICAN  CRIMINAL  REPORTS. 


</fi 


)     ' 


'.* , 


[^M 


insanity  which  would  excuse  murder,  or  any  other  crime,''  etc. 
1  Russ.  Crimes  (7th  Ed.)  16,  17.  l^fr.  Wharton  adopts  the  modi- 
fied theory  as  being  more  consonant  with  reason  and  justice, 
and  says :  "  By  the  common  hiw,  every  man  is  presumed  to 
be  sane  until  the  contrary  is  proved;  and  the  better  oi)inion 
is  that,  when  insanity  is  set  up  by  the  defendant,  it  must  be 
proved  as  a  substantive  fact  by  the  party  alleging  it,  on  whom 
lies  the  burden  of  proof."  Whart.  Horn.  (2d  Ed.)  Sec.  Of]').  Mr. 
^^reenleaf  states  the  rule  in  somewhat  similar  terms,  thus: 
'  la  all  such  cases  the  jury  are  to  be  told  that  every  man  is  to 
be  presumed  to  be  sane,  and  to  possess  a  sufficient  dcji^ree 
of  la-  "^n  to  be  responsible  for  his  crimes,  until  the  coiitniry 
be  prtM'ed  to  their  satisfaction;  and  that  to  establish  a 
defense  on  the  ground  of  insanity  it  must  be  clearly  proved 
that  at  the  time  of  committing  the  act  the  party  accused  was 
laboring  under  su(!h  a  defect  of  reason  from  disease  of  the  inind 
as  not  to  know  the  nature  and  quality  of  the  act  he  was  doing," 
el ).  2  Greenl.  Ev.,  Sec.  373.  In  the  recent  treatise  of  Ilice  on 
the  Law  of  Criminal  Evidence,  in  discussing  the  plea  of  insanity, 
he  says:  "  After  careful  review  of  the  various  judicial  (/ii-ta.  we 
are  inclined  to  recommend  the  instructions  contained  in  the 
case  of  Baldioin  v.  State,  1?  Mo.  223,  which  decision  is  author- 
ity for  the  broad  proposition  that  the  defense  of  insanity  is  estab- 
lished when  the  evidence  offered  in  support  of  it  preponiler- 
ates  in  favor  of  the  fact,  and  reasonably  satisfies  the  jury 
that  it  existed  at  the  time  the  criminal  act  charged  was  commit- 
ted." 3  Rice  Ev.,  Sec.  396.  That  author  cites  the  case  of  Jiom-ell 
V.  State,  63  Ala.  307,  in  which  it  was  held  that  "  insanity  is  a 
defense  which  must  be  established  to  the  satisfaction  of  the 
jury  by  a  preponderance  of  the  evidence,  and  a  reasonable 
doubt  of  the  defendant's  sanity,  raised  by  all  the  evidence,  does 
not  authorize  an  acquittal."  Id.,  Sec.  399.  The  author  then 
observes  that "  the  adjudged  cases  in  this  country  present  a  vast 
weight  of  authority  favorable  to  the  doctrine  of  Boswell's 
case,  or  at  least  in  repudiating  the  rule  entitling  a  defendant 
to  an  acquittal  upon  the  existence  of  a  mere  reasonable  doubt 
of  his  sanity." 

The  expressions  of  some  of  the  state  courts,  to  whose  opin- 
ions w^e  invariably  turn  for  information  in  case  of  serious  doubt 
and  perplexity,  may  here  be  quoted  with  advantage.  Follow- 
ing the  later  and  modilied  jurisprudence  of  the  courts  of  Eng- 


STATE  r.  SCOTT. 


695 


land,  the  Masssicliusetts  court,  in  Com.  v.  Rogers,'!  Mete.  500, 
said :  "  The  ordinary  presumption  is  tiiat  a  person  is  of  sound 
mind  until  the  contrary  appears;  and  in  ordei*  to  shield  one 
from  criminal  responsibility  the  presumption  must  be  rebutted 
by  proof  of  the  contrary,  satisfactory  to  the  jury,  either  out 
of  the  evidence  offered  by  the  prosecutor  to  establish  the  cause 
agJiinst  the  accused,  or  from  the  distinct  evidence  offered  on 
his  part.  In  either  case  it  must  be  sufficient  to  establish  the 
fact  of  insanity,  otherwise  the  presumption  must  stand."  In 
Com.  V.  Eihlij,  7  Gray,  5S3,  the  same  court  said  :  "  But  it  is  a 
presumption  of  law  that  all  men  are  of  sane  mind;  and  that 
presumption  of  law  sustains  the  burden  of  proof,  unless  it  is 
rebutted  and  overcome  by  satisfactory  evidence  to  the  contrary. 
In  order  to  overcome  the  presumption  of  law,  and  shield  the 
defendant  from  le<ral  responsibility,  the  burden  is  on  him  to 
prove,  to  the  satisfaction  of  the  jury,  by  a  preponderance  of 
the  whole  evidence  in  the  case,  that  at  the  time  of  com- 
mitting the  homicide  he  was  not  of  sane  mind."  In  Ortwein 
V.  Com.,  76  Pa.  St.  414,  the  court  said:  "Insanity  must  be 
made  to  appear  on  behalf  of  the  defendant;  and  to  be  made 
to  appear  to  the  tribunal  determining  the  fact  the  evidence  of 
it  must  be  satisfactory,  and  not  merely  doubtful,  as.  nothing 
less  than  satisfaction  can  determine  a  reasonable  mind  to 
believe  a  fact  contrary  to  the  course  of  nature."  In  State  v. 
Davis,  109  N.  C.  780,  the  court  sustained  this  instruction  of 
the  trial  judge,  viz. :  "  The  burden  is  on  the  defendant  to 
satisfy  the  jury,  but  not  beyond  a  reasonable  doubt,  that  he 
had  not  sufficient  mental  capacity  to  know  right  from  wrong," 
etc.  The  foregoing  dicta  have  been  followed  and  repeated 
with  perfect  unanimity  and  without  a  single  dissent  in  the 
following  cases  from  the  states  enumerated,  viz. :  Parsons  v. 
State,  81  Ala.  577;  7  Am.  Cr.  266;  Ford  v.  State,  71  Ala.  385; 
Gunter  v.  State,  S3  Ala.  96;  Coates  v.  State,  50  Ark.  330;  Casat 
V.  Stat^,  40  Ark.  511;  Boiling  v.  State,  54  Ark.  588;  PeopU  v, 
Bemmerly,  98  Cal.  299;  State  v.  Trout,  74  Iowa,  545;  State  v. 
Jones,  64  Iowa,  356;  liriel  v.  Com.,  5  Bush,  362;  Moore  v.  Com. 
(Ky.)  18  S.  W.  833;  Ball  v.  Com.,  81  Ky.  662;  Kaelinv.  Com., 
84  Ky.  354;  Com.  v.  Rogers,  7  Mete.  (Mass.)  500;  State  v.  Law- 
rence, 57  Me.  574;  State  v.  Ilanley,  34  Minn.  430;  State  v. 
Schutfer  (Mo.  Sup.)  22  S.  W.  447;  Loeffnerv.  State,  10  Ohio  St. 
59S;  Bond  v.  Slate,  23  Ohio  St.  349;  Ortwein  v.  Com.j  76  Pa. 


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696 


AMERICAN  CRIMINAL  REPORTS. 


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I   .r>3.,' J 


77 


St,  414;  Pannell  v.  Com.,  86  Pa.  St.  200;  Zy?jr7t  v.  Com 
Pa.  St.  207;  aS7«<6  v.  Vunn,  82  N.  C.  631;  State  v.  limuJy,  24 
S.  C.  439;  State  v.  Paulk,  IS  S.  C.  515;  Webb  v.  State,  9  Tex. 
App.  490;  Leache  v.  State,  22  Tex.  A])p.  279;  People  v.  Dillon, 
8  Utah,  92;  State  v.  Strauder,  1 1  W.  Va.  745;  Bacc'ujahqxi  v. 
Com,,  33  Grat.  807.  The  foregoing  decisions  represent  the 
settled  opinions  of  seventeen  states  of  the  Union  upon  this 
most  important  and  vital  question,  and  they  are  in  harmony 
with  the  present  jurisprudence  of  England. 

3.  The  leading  and  most  important  case  which  favors  the 
third  theory  is  Davis  v.  U.  S.,  160  U.  S.  469,  16  Sup.  Ct.  353, 
a  case  in  which  the  question  of  insanity  of  the  accused  was 
examined  with  great  care,  and  all  authorities  on  the  question 
were  reviewed,  English  as  well  as  American.  That  case  in- 
volved the  correctness  of  the  trial  judge's  charge  to  the  jury, 
from  which  we  make  the  following  extract,  viz.:  "  In  other 
words,  if  the  evidence  is  in  equllihrio  as  to  the  accused  being 
sane — that  is,  capable  of  comprehending  the  nature  and  effect 
of  his  oath — he  is  to  be  treated  just  as  he  would  be  if  there 
were  no  defense  of  insanity ,or  as  if  there  were  an  entire  absence 
of  proof  that  he  was  insane."  But  it  was  the  contention  on 
the  part  of  attorney  for  defendant  in  error  that  the  true  rule 
is  that  if  the  evidence  raises  a  reasonable  doubt  of  the  sanity 
of  the  defendant,  the  jury  should  have  been  instructed  to 
acquit  him;  that  is  to  say,  if  the  evidence  offered  by  the 
defendant  raises  a  doubt  of  his  sanity,  the  burden  is  placed 
upon  the  prosecution  to  affirmatively  overcome  that  doubt  by 
proof  of  his  sanity.  In  support  of  this  proposition  the  decis- 
ions of  the  following  courts  are  cited,  viz.:  Connecticut,  Flor- 
ida, Illinois,  Indiana,  Kansas,  Michigan,  Mississippi,  Nebraska, 
New  Hampshire,  New  Mexico,  New  York,  Wisconsin  and 
Tennessee — 13  in  number.  The  purport  of  these  decisions  is 
that  while  there  is  a  presumption  of  defendant's  sanity,  this 
only  goes  to  the  extent  of  relieving  the  State  of  the  burden  of 
proving  sanit\',  and  without  any  proof  on  the  subject,  the 
presumption  is  conclusive;  but  where  proof  is  adduced,  estab- 
lishing a  reasonable  doubt  of  his  sanity,  it,  in  effect,  estab- 
lishes a  reasonable  doubt  as  to  whether  there  was  malice  in 
the  homicidal  act,  inasmuch  as  malice  and  ill  will  can  not 
exist  in  the  mind  of  an  insane  person.  Accepting  this  theory 
as  most  conformable  to  r.he  ends  of  ju.'-tice,  the  Supreme  Court 


STATE  V.  SCOTT. 


597 


said :  "  If  the  whole  evidence,  including  that  supplied  by  the 
presumption  of  sanit\%  does  not  exclude  beyond  reasonable 
doubt  the  hypothesis  of  insanit\',  of  which  some  proof  is 
adduced,  the  accused  is  entitled  to  an  acquittal  of  the  specific 
offense  charged.  His  guilt  can  not  be  said  to  liave  been 
proved  beyond  a  reasonable  doubt,  his  will  and  his  acts  can 
not  be  held  to  have  joined  in  perpetrating  the  murder  charged, 
if  the  jury,  upon  all  the  evidence,  have  a  reasonable  doubt 
whether  he  was  legally  capable  of  committing  crime,  or 
(which  is  the  same  thing)  whether  he  willfully,  deliberately, 
and  unlawfully,  and  of  malice  aforethought,  took  the  life  of 
the  deceased."  The  court  cited  the  following  cases  from  the 
states  above  enumerated,  as  supporting  their  theory',  viz.: 
Peojde  V.  JloCann,  !(>  N.  Y.  58U;  Bi-otherton  v.  People,  75 
N.  Y.  159;  aConncll  v.  Peojde,  87  N.  Y.  377;  Walket-  v. 
Peojde,  SS  K  Y.  81;  Ilojyps  v.  Peoj}ls,U  111.  385;  State  v. 
Bartlett,  43  X.  H.  224;  Peojjle  v.  Garhutt,  17  Mich.  9;  Dove 
V.  State,  3  Heisk.  348;  Ctinningham  v.  State,  56  Miss.  2G0; 
riahe  V.  State,  121  Ind.  433;  Polk  v.  State,  19  Ind.  17  »;  Bmd- 
leyv.  State,  31  Ind.  492;  MeDoiujal  v.  State,  88  Ind.  24.  And, 
finally,  they  adopted  the  view  expressed  by  the  Supreme 
Court  of  the  District  of  Columbia  in  GuitcaiCs  Case,  10  Fed. 
ICl.  It  is  a  fact  that  is  worthy  of  observation  that  the  supremo 
court  cite  no  other  decision  of  their  own  as  a  precedent  there- 
for, and  that  they  refer  to  no  treatise  on  criminal  law  as  sup- 
porting the  theory  upheld  by  them.  On  the  contrarj',  the}' 
admit  that  the  jurisprudence  of  the  English  courts  main- 
tains the  correctness  of  the  second  proposition,  supra; 
and  that  the  courts  of  a  great  number  of  the  states  of 
the  Union  do  likewise.  Mr.  Wharton  says  of  the  theory 
maintained  by  the  supreme  court  in  the  Davis  case : 
"  This  is  a  modern  and  strictly  American  doctrine,  and 
it  finds  no  countonane,  so  far  as  I  can  discover,  amongst  the 
best  law  writers  or  adjudged  cases  in  England.  It  seems  to 
be  supported  by  Mr.  Bishop,  alone,  of  the  American  text 
writers,  and  finds  support  in  the  decisions  of  only  some  nine 
or  ten  of  the  highest  courts  in  the  several  states."  Whart. 
Hom.,  §  399.  In  proof  of  this  assertion  the  author  cites  the 
greater  portion  of  the  decisions  referred  to  by  the  court  in  the 
Davis  case,  and  2  Bish.  Cr.  Law,  §  673;  and  he  cites  contra^ 
many  of  the  decisions  we  have  referred  to  on  the  other  side. 


■ '  s 


It 


-ill 


59S 


AMERICAN  CRIMINAL  REPORTS. 


4.    According  to  our  judgment,  this  court  has,  in  at  least 
two  cases,  expressed  its  ajiproval  of  the  second  theory;  but  in 
some  opinions  of  recent  date  it  has  adopted  the  first.    In  so 
doing  it  has  pursued  an  exactly  opposite  course  from  that 
adopted  by  the  English  courts,  which  have  changed  from  the 
first  to  the  second;  and  that  of  the  Supreme  Court,  which,  as 
a  matter  of  first  impression,  has  chosen  the  third  one.    For 
instance,  in  State  v.  Burns,  "25  La.  Ann.  302,  the  trial  jud^e 
was  requested  to  charge  the  doctrine  of  the  Davis  case,  to  the 
effect "  that,  if  they  entertained  a  reasonable  doubt  as  to  the 
sanity  of  the  prisoner  at  the  time  of  the  commission  of  the 
alleged  act,  they  were  bound  toacquit  him;"  but  on  the  contrary, 
the  judge  charged  the  jury  "  that  the  law  presumes  the  sanity 
of  every  man,  and  that  it  devolved  upon  the  prisoner,  under 
the  plea  of  insanity,  to  satisfy  the  jury  by  a  reasonable  pre- 
ponderance of  proof  that  he  was  insane  at  the  time  of  the 
commission  of  the  alleged  act."     And  this  court  said:    "We 
think  the  judge  did  not  err  in  this  charge.    The  true  rule  is 
that  the  jury  are  to  be  told  that  every  man  is  presumed  to  be 
sane,  and  to  possess  a  sulticient  degree  of  reason  to  '•'e  respon- 
sible for  his  crimes,  until  the  contrary  be  proved  to  their  sat- 
isfaction; and  that  to  establish  a  defense  on  the  ground  of 
insanity  it  must  be  clearly  proved  that  at  the  time  of  commit- 
ting the  act  the  party  accused 'was  laboring  under  sucli  a 
defect  of  reason,  from  disease  of  mind,  as  not  to  know  the 
nature  and  character  of  the  act  he  was  doing,  or,  if  he  did 
know  it,  that  he  did  not  know  that  it  was  wrong."    In  tState 
V.  Coleman,  27  La.  Ann.  691,  the  charge  given  to  the  jury  was 
very  nearly  the  same  as  that  given  in  the  Burns  case,  as  will 
appear  from  the  following,  viz.:    "  When  insanity  is  pleaded  in 
defense  of  a  criminal  act,  it  must  be  clearly  shown  to  have 
existed  at  the  time  of  the  commission  of  the  act; "  and  "that 
every  person  is  presumed  to  be  sane  until  the  contrary  is 
proved;  and  it  is  for  him  who  sets  up  this  defense  to  prove  it 
by  evidence  which  will  satisfy  the  minds  of  the  jurors  that  the 
party  was  insane  at  the  time  of  the  commission  of  the  offense." 
And  the  court  said,  "  This  charge  was  undoubtedly  correct." 
Upon  comparison,  these  two  decisions  will  be  found  to  square 
exactly  with  the  present  jurisprudence  of  the  English  courts; 
and  in  criminal  matters  that  jurisprudence  is,  by  positive  statu- 
tory enactment,  made  our  guide.    The  statute  provides  that 


STATE  V.  SCOTT. 


>99 


"criinas,  offensos,  and  misdomoanors  shall  bo  taken,  intended 
anil  construed  uccordincr  to  and  in  conlonnitv  with  the  com- 
mon  law  of  England;  and  the  forms  of  indictment,  the  method 
of  trial,  the  rules  of  evidence,  and  all  other  proceedings  what- 
soever in  the  prosecution  of  crimes  and  misdemeanors,  chang- 
ing what  ought  to  be  changful,  shall  be  according  to  the  com- 
mon law,  unless  otherwise  provided."  Section  33  of  Act  50 
of  1805,  p.  440;  Rev.  St.,  §  076.  And  the  force  of  this  rule  is 
strengthened  by  the  ])rovi.sions  of  sections  003,  004  and  905  of 
the  Revised  Statutes,  wliich  declare  that  the  plea  of  insanity 
raised  upon  the  general  issue  is  one  for  tlio  jury  to  determine 
as  an  issue  of  fact;  and,  if  same  is  sust;iined  by  proof,  their 
verdict  shall  bo  "  Not  guilty."  It  is  clear,  then,  that  a  reason- 
able doubt  of  the  insanity  of  the  accused  wouhl  not  satisfy 
"our  statute,"  and  the  principle  of  the  Davis  case  can  not  be 
applied  in  this  state.  The  consequence  is  that  in  criminal 
matters  this  court  must  follow  the  decisions  of  the  English 
courts  as  the  best  expression  of  the  common  law,  in  preference 
to  those  of  the  Supreme  Court  of  the  United  States. 

Ado))ting  this  as  che  correct  guide,  it  becomes  our  duty  to 
conform  our  jurisprridence  thereto.  In  State  v.  De  Ranee,  34 
La.  Ann.  186,  our  immediate  predecessors,  as  already  intimated, 
receded  from  the  position  assumed  in  the  Burns  and  Cole- 
man cases,  and  uphold  the  first  theor\',  sujyra.  That  decision 
has  been  quoted  as  authority  only  once  by  this  court  as  at 
present  constituted,  and  then  it  was  merely  cited  without  dis- 
cussion in  an  uncontested  case.  State  v.  Clements,  47  La.  Ann. 
1088.  Finding  that  decision — State  v.  De  Ranee — unsupported 
by  the  current  and  weight  of  American  authority,  and  not  in 
keeping  with  the  English  jurisprudence,  I  think  it  the  duty 
of  this  court  to  formally  and  in  terms  overrule  it  and  adhere 
to  the  theory  maintained  in  State  v.  Biirm  and  State  v.  Cole- 
man. My  examination  of  the  decisions  cited  in  the  De  Ranee 
case  does  not  impress  my  mind  as  they  seem  to  have 
impressed  those  of  our  predecessors.  In  the  lirst  place,  the 
Supreme  Court  of  New  Jersey,  in  a  case  of  much  more  recent 
date  than  that  of  State  v.  Spencer,  has  most  distinctly  aligned 
itself  upon  the  second  theory,  as  will  appear  from  Graves  v. 
State,  45  N.  J.  Law,  203 — decided  in  1883,  whereas  the  Spen- 
cer case  was  decided  in  1840 — in  which  the  court  say :  "And 
indeed,  so  far  as  experience  or  tradition  extends,  it  has  been 


600 


AMERICAN  CRIMINAL   REPORTS. 


.'..  'J 


the  invariable  course  to  instruct  the  jury  that  tho  In  ma 

facie  presumes  mental  sanity;  and  that  when,  in  a  ji^ivuii  caso, 
the  prisoner  woulil  overcome  such  presumption,  ho  muHt  «'.Niiil)it 
a  clear  preponderance  of  proof  in  favor  of  such  dercnso." 
That  this  change  in  tho  course  of  decision  hy  that  court  is  con- 
spicuous, appears  from  the  fact  that  it  has  been  noted  and 
commented  upon  by  Mr.  Wharton.  1  Wliart.  Vr.  Law,  ^  ♦!, 
and  note;  Whart.  Or.  Ev.,  ^g  330,  Did.  This  change  must  imvo 
an  important  influence  upon  courts  whicli  have  conforinod 
their  opinions  to  that  theory;  And  indeed,  this  has  been  (h>no, 
especially  by  the  Soutii  Carolina  court.  Aligning  the  author- 
ities cited  in  Do  Ranee's  case,  I  find,  by  making  a  comparison 
with  the  foregoing  lists  of  cases  which  I  have  examined  and 
cited,  that  all  save  one — State  v.  Spencer,  21  N.  J.  Law  ^(t2~ 
are  to  be  classed  as  favoring  either  tlie  second  or  thin'  >ry, 
supra,  and  not  the  first,  to  whicii  category  the  opinion  ..  ,iod 
them.  Indeed,  I  find  in  the  quotation  selected  by  the  court 
such  expressions  as  "  must  bo  clearly  ])roved,"  "  on  whom  lies 
the  burden  of  proof,"  "  governed  by  the  preponderance  of  tes- 
timony," "clear  and  satisfactory,"  "will  satisfy  the  jur}',"  "to 
the  satisfaction  of  the  jury,"  "  must  be  satisfactory,"  and  tl.e 
like;  but  there  is  not  found  in  anvof  them  the  st.tement  that 
insanity  must  be  proven  beyond  a  reasonable  doubt.  34  La. 
Ann.  188,  189.  And  yet  tlie  opinion  undertakes  to  say,  upon 
the  faith  of  those  authorities,  that  "  the  burden  of  proof  on 
this  plea  rests  upon  the  defense  urging  it,  and  its  truth  must 
be  establisheil  beyond  a  reasonable  doubt."  Page  IDO,  citing 
27  La.  Ann.  692.  On  tho  application  for  rehearing  an  addi- 
tional opinion  was  rendered,  refusing  it,  but  there  was  ho  addi- 
tional authority  cited,  the  apparent  effort  being  to  reconcile 
the  various  expressions  we  have  quoted  with  that  of  "  beyond 
a  reasonable  doubt; "  that  is,  to  demonstrate  tijat  they  are  one 
and  the  same  thing.  The  conclusion  is  irresistible,  then,  that 
if  they  are  not  one  and  the  same  thing,  that  opinion  is  wrong; 
and  I  have  shown  most  conclusively,  by  all  the  authorities  I 
have  cite-^,  that  they  are  totally  different,  and  irreconcilable 
altogether.  Not  only  is  that  the  case,  but  in  the  year  1883 — 
the  year  subsequent  to  that  in  which  the  decision  of  De  Ranee's 
case  was  rendered — the  very  decision  of  tho  court  upon  which 
it  mainly  depends  was  altogether  changed.  45  N.  J.  Law, 
203.    It  follows,  as  a  necessary  consequence,  that  the  instruc- 


STATE  V.  SCOTT. 


601 


tions  given  bj'  the  trial  judge  to  tlio  jury  were  inconsistent 
iiinl  conflicting,  and  gave  to  the  accused  just  ground  of  coni- 
pliiiiit;  but  that  was  not  the  fault  or  mistake  of  our  learntMl 
l)rotherof  the  district  court,  wlio  merely  conformed  his  views 
to  tliose  expressed  by  this  court  in  the  L)e  Ilance  case. 

Bkkaux,  J.  (dissenting).  Under  the  common  law  every  man 
is  presumed  sane  until  the  contrary  be  jjroven.  Insanity,  as  a 
plea,  should  be])roved  as  a  substantive  fact  by  the  accused,  on 
wiiom  the  burden  of  proof  rests.  JJeing  of  the  opinion  that 
the  proof  of  insanity  at  the  time  of  committing  the  act  ought 
to  be  made  as  clear  and  satisfactory  by  the  accused  to  secure 
his  acquittal  on  the  ground  of  insanity  as  the  proof  of  commit- 
ting the  act  ought  to  be  made  evident  by  the  state  in  order  to  ilnU 
a  sane  man  guilty,  I  respectfully  dissent.  The  foregoing  rule  is 
the  English  rule,  announced  by  Mr.  Wharton  in  his  work  on 
Homicide. 


« 


Note. — Preitumption  of  sanity  and  burden  of  proof  . — In  a  very  able  anrl 
elaborate  note  to  the  foregoing  case,  in  volume  iJO.  page  721  of  the  Lawyers 
Reports  Annotated,  in  which  the  question  of  insanity  is  discussed  in  many 
of  its  phases  relative  to  criminal  and  civil  procedure,  it  is  said  that  the 
rule  of  the  principal  case  is  practically  universal,  and  has  been  repeatedly 
laid  down  in  general  terms,  that  every  person  is  presumed  to  be  sane  until 
the  contrary  appears.  In  support  of  which  the  following  eases  are  cited  : 
Ethridge  v,  Bennett,  9  Houst.  (Del.)  205;  Armstrong  v.  Timmons,  3  Harr. 
(Del.)  342;  Ditffield  v.  Rubeson,  2  Harr.  (Del.)  375;  Frazer  v.  Fmzvr,  3  Del. 
Ch.  200;  Humphreys  v.  State,  45  Ga.  190;  Argo  v.  Coffin,  142  111.308;  Guild 
V.  Hull,  127  111.  523:  McCarthy  v.  Kearnan,  80  111.  291;  Wallis  v.  Luhring, 
134  Ind.  447;  Rtish  v.  Megee,  30  Ind.  09;  State  v.  Coleman,  27  Lji.  Ann.  691; 
State  V.  Burns,  25  La.  Ann.  302;  Chandler  v.  Barrett,  21  La.  Ann.  58,  99 
Am.  Dec.  701;  Rieketts  v.  Jolliff,  03  Miss.  440;  Mullins  v.  Cottrell,  41  Miss. 
291;  State  v.  Wright,  134  Mo.  404;  Perkins  v.  Perkins,  39  N.  H.  103;  Jackson, 
exdem.  Vandusen  v.  Vandusen,  5  Johns.  144,  4  Am.  Dec.  330;  Jackson,  ex 
dem.  Cadtcell  v.  King,  4  Cow.  207,  15  Am.  Dec.  354;  Ean  v.  Snyder,  46  Barb. 
230;  Odom  v.  Riddick,  104  N.  C.  515,  7  L.  R.  A.  118;  Ballew  v.  Clark.  2 
Ired.  L.  23;  Miller  v.  Rutledge,  83  Va.  883;  Clark  v.  State,  8  Tex.  App.  350; 
Smith  V.  State,  23  Tex.  App.  317;  Giebel  v.  State,  28  Tex.  App.  151. 

The  better  rule  would  seem  to  be,  where  the  charge  against  the  accused 
is  denied  by  him,  that  the  presumption  that  every  man  is  sane  until  the 
contrary  is  proved  is  not  a  presumption  of  law  but  one  of  fact,  or  at  least  a 
mixed  presumption  of  law  and  fact  to  be  governed  by  instructions.  Sutton 
V.  Sadler,  3  C.  B.  N.  S.  87.  26  L.  J.  C.  P.  N.  S.  284,  3  Jur.  N.  S.  1150. 

It  has  its  practical  application  in  imposing  the  burden  of  proof  upon  him 
who  sets  up  insanity,  but  the  presumption  is  not  to  be  weighed  against  any 
measurable  amount  of  evidence.    State  v.  Jones,  64  Iowa,  356. 


ik 

'«■' 

iiiiSasii 


11 


602 


AMERICAN  CRIMINAL  REPORTS. 


And  it  is  to  be  regarded  as  merely  a  iriatter  of  evidence  standing  upon 
the  same  ground  as  the  testimony  of  a  witness;  it  dot>s  not  shift  the  hiivden 
of  proof  in  tlie  sense  of  clianging  tlie  rule  as  to  the  quantity  of  evidence 
but  is  simply  prima  facie  proof  of  sanity  upon  wliich,  otiier  things  being 
siiown.  tlie  jury  may  find  a  verdict.  State  v.  Bartlett,  43  N.  H.  224, 80  Am 
Dec.  ir,4. 

The  discharge  of  a  person  from  the  insane  asylum  wlio  had  been  trans- 
ferred from  the  penitentiary  creates  the  presumption  in  favor  of  iiis  recovery. 
Laiigdim  v.  People,  133  111.  382. 

A  person  who  has  been  deaf  and  dumb  from  his  birth  is  deemed  to  be  rum 
compos,  but  the  rule  is  different  where  he  becomes  so  from  accident.  Yong 
V.  Sunt,  1  Dyer,  5Ca. 

But  the  doctrine  that  a  pei-son  born  deaf  and  dumb  was  deemed  to  be  an 
idiot  has  been  abandoned,  and  the  question  of  such  a  per8f>n's  ability  to  con- 
tract now  rests  upon  his  mental  capacity.  Baniett  v.  Barndt,  1  Jones  Eq. 
221;  titate  v.  Hotvard,  118  Mo.  127. 

A  person  who  was  deaf  and  dumb  from  his  nativity  is  not  therefore  an 
idiot  or  7ion  compos  mentis,  though  such  perhaps  may  have  been  tlio  legal 
presumption  at  common  law.  Broiver  v.  i''/V.7ier,  4  Johns.  Ch.  441.  And 
see  also  State  v.  Draper,  Houst.  Crini.  Rep.  (Del.)  291,  and  King  v.  Steel, 
1  Loach  C.  C.  451. 

Every  person  is  presumed  to  intend  the  usual  and  actual  conscqucnres  of 
his  acts.  Sanders  v.  State,  94  Ind,  147.  And  before  a  plea  of  InKiniity  can 
be  allowed  to  prevail  as  an  excuse  for  a  crinimal  act  satisfactory  evidence 
must  be  otfered  that  the  accused  was  so  affected  with  insanity  at  the  time 
of  its  commission  th.at  he  was  incapable  of  api)reciating  its  eiionnlty. 
Fisher  v.  People,  23  III.  283;  State  v.  Ilartkij  (Nev.),  28  L.  K.  A.  3;i. 

And  an  instruction  hi  a  criminal  action  that  the  jury  is  to  incsiimo  the 
defendant  innocent  until  his  guilt  is  established  by  evidence  beyond  a  rea- 
sonable doubt  is  not  inconsistent  with  another  instruction  that  I'very  man 
is  presumed  to  be  sane  and  to  intend  the  natural  and  ordinary  consciniciices 
of  hisacts.  Greenley  v.  State, QO  Ind.  141.  Thecriminal  act  itself,  bowfver, 
should  not  be  considered  as  raising  a  presumption  of  insanity.  Beaxh'!/  v. 
State,  50  Ala.  149. 

Proof  of  the  killing  on  a  prosec  ution  for  murder  raises  a  presumption  that 
the  accused  was  criminally  res|K)nsible  for  it,  though  he  wjis  born  deaf  and 
dumb  and  had  never  received  special  religious  and  moral  instruction. 
State  V.  Draper,  Houst.  Crim.  Rep.  (Del.)  291. 

Althougli  one  who  was  a  deaf  mute  from  nativity  is  in  contemplation  of 
law  incapable  of  guilt  ujion  the  presumption  of  idio(;y,  yet  that  prehunip- 
tion  may  be  repelled  by  evidence  of  that  capacity  to  understand  by  signs 
anil  tokens  which  persons  thus  afflicted  frecjuently  jiossess  to  a  very  great 
extent.     King  v.  Steel,  1  Leach  C.  C.  451. 

While  the  general  rnleus  to  the  burden  of  proof  is  not  universally  applied 
in  prosecutions  for  criminal  acts,  the  majority  of  the  cases  adopt  the  tlieory 
that  the  plea  of  insanity  is  an  affirmative  defense.  State  i\  Li'wifi,  20  Nev. 
333  ;  Brofherton  v.  People,  75  N.  Y.  159 ;  Com.  v.  Bezelc,  108  Pa.  60;i. 

And  hold,  with  the  principal  case,  that  the  burden  rests  with  the  iucused 
to  prove  it  and  rebut  the  presumption  of  sanity  and  criminal  resjjonsibijity. 
Parsons  v.  State,  81  Ala.  577,  7  Am.  Cr.  Rep.  206;  Boiling  v.  Slutr,  54  Ark. 
588  ;  People  V.  Ward,  105  Cal.  335 ;  State  v,  Iloyt,  47  Conn.  518 ;  State  v. 


•  .-lyfcS-'-fir 


I^p^ 

'l 

STATE  V.  SCOTT. 


603 


Harrigan,  9  Houst.  (Del.)  369  ;  Carr  v.  State,  96  Ga.  284;  Moore  v.  Com., 92 
Ky.  630 ;  State  v.  Clements,  47  La.  Ann.  1088 ;  Com.  v.  Eddy,  7  Gray,  583  ; 
State  V.  Hanky,  34  Minn.  430;  State  v.  lirown,  12  Minn.  538  ;  Bonfanti  v. 
State,  2  Minn.  123;  Ford  v.  State,  73  Miss.  734,  35  L.  R.  A.  117  ;  State  v. 
Schaefer,  116  Mo.  96 ;  State  v.  Lewis,  136  Mo.  84 ;  State  v.  Lewis,  20  Nev. 
333  ;  State  v.  Spencer,  21  N.  J.  L.  196  ;  Faulkner  v.  Territory,  6  N.  M.  464  ; 
Brotlicrton  v.  People,  75  N,  Y.  159;  State  v.  Davis,  109  N.  C.  780;  State  v. 
Potts,  100  N,  C.  457  ;  State  v.  Payne,  86  N.  C.  6C9 ;  Kelch  v.  State,  36  Oliio 
L.  J.  267  ;  Bcrginv.  State,  31  Oliio  St.  Ill  ;  Com.  v.  Bezek,  168  Pa.  603; 
State  V.  Mcintosh,  39  S.  C.  97  ;  Dove  v.  State,  3  Hcisk.  348  ;  Leachev.  State, 
23  Tex.  App.  279 ;  People  v.  Calton,  5  Utah,  451 ;  Baccigalupo  v.  Com.,  33 
Gratt.  807  ;  United  States  v.  Lancaster,  7  Diss.  440;  United  States  v.  Ridg- 
tmy,  31  Fed.  Rep.  144 ;  Reg.  v.  Layton,  4  Cox  C.  C.  149  ;  Reg.  v.  Stokes,  3 
Car.  &  K.  185. 

Unless  insanity  appears  from  tlie  evidence  offered  by  tlie  state.  State  v. 
Datiby,  Houst.  Crini.  Rep.  (Del.)  166  ;  People  v.  Calton,  5  Utah,  451. 

And  one  wlio  alleges  insanity  as  a  defense  in  a  criminal  prosecution  must 
prove  it  as  other  material  allegations  are  proved.  State  v.  Starling,  6 
Jones  L.  366. 

It  nmst  be  shown  by  the  accused,  and  where  he  offers  no  testimony  tend- 
ing to  show  it  the  presunnrtion  ia  favor  of  sanity  remains  unrebutted. 
State  V.  Xorii'ood,  115  N.  C.  791  ;  McKenziev.  State,  26  Ark.  334. 

Tlie  defendant  in  a  criminal  action  who  relies  upon  insanity  as  a  defense 
lias  the  affirmative,  and  before  it  can  be  availed  of  he  is  bound  to  establish, 
no ;  only  the  fact  of  insanity,  but  insanity  arising  from  such  a  cause  as  in 
point  <v  law  amounts  to  a  defense.    People  v.  Bell,  49  Cal.  485. 

Sanity  is  presumed,  and  wliere  insanity  is  alleged  as  a  defense  in  a  prose- 
cution for  crime,  it  devolves  upon  the  accused  to  prove  that  he  was  insane 
and  incapable  of  rational  action  to  such  an  extent  as  to  render  him  irre- 
siMjnsible  at  the  time.  Com.  v.  Werling,  164  Pa.  559  ;  King  v.  State,  9  Tex. 
App.  558. 

Where  the  killing  is  established  on  a  trial  for  murder  it  devolves  upon 
the  accused  to  prove  that  he  was  in  such  a  condition  at  the  time  the  deed 
was  done  as  not  to  know  the  consequences  of  his  act,  and  not  to  know  right 
from  wrong.  Casat  v.  State,  40  Ark.  511 ;  Humphreys  v.  State,  45  Ga. 
190 ;  State  v.  Panne,  86  N.  C.  609. 

So,  the  burden  of  proof  of  partial  insanity  alleged  as  a  defense  in  a  crim- 
inal prosecution  rests  with  the  accused,  and  it  must  be  proved  like  any 
other  fact,  to  overcome  the  presumption  of  sanity.  State  v.  Pratt,  Houst. 
Crim.  Rep.  (Del.)  249. 

An  allegation  of  temporary  insanity  as  a  defense  in  a  criminal  prosecu- 
tion casts  the  burden  upon  the  accused  to  prove  that  the  criminal  act  was 
committed  at  a  time  when  he  was  actually  insane.  KinlocKs  Trial,  25 
How.  St.  Tr.  891.  997. 

So,  one  who  interirases  a  plea  of  inability  to  control  his  own  actions  as  a 
defense  to  a  prosecution  for  any  act  of  pci-sonal  violence  has  the  burden  of 
proof  to  show  such  inability.     State  v.  Rvidell.  9  Houst.  (Del.)  470. 

And  where  the  commission  of  a  crime  is  admitted,  and  insanity  is  alleged 
as  a  defense,  the  burden  rests  with  the  accused  to  establish  insanity  or  want 
of  moral  power  to  resist  the  impulse  to  commit  the  crime.  Brown  v.  Com.,  78 
Pa.  123. 


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ii 


It  ^i 


604 


AMERICAN  CRIMINAL  REPORTS. 


And  the  fact  that  some  controlling  disease  was  the  acting  power  witliin 
the  accused,  which  he  could  not  resist,  or  that  he  had  not  suflicii'nt  use  of 
his  reason  to  control  the  passions  which  proni))ted  the  act,  does  iiDt  nlieve 
hirn  from  resptmsibility.     State  v.  Coleman,  27  La.  Ann.  691. 

And  where  a  jury  is  impaneled  at  the  instance  of  the  accused  in  a  crim- 
inal  prosecution  to  try  the  (juestion  of  his  sanity  at  the  time  he  is  hrouL'ht 
up  to  plead  to  the  indictment,  the  burden  of  proof  of  insanity  rests  witli  the 
accused.  Reg.  v.  Turton,  6  Cox  C.  C.  385  ;  State  v.  OOrady,  3  Ohio  Legal 
News,  137. 

So,  where  irresixinsible  drunkenness  is  relied  upon  as  a  defense  to  a 
prosecution  for  crime,  the  burden  of  proving  it  rests  with  the  accused. 
State  V.  Grear,  29  Minn.  221 ;  FonriHe  v.  State,  91  Ala.  39. 

The  burden  rests  with  him  to  show  that  his  reason  was  dethroned,  or  tliat 
he  was  ih  such  a  condition  as  to  be  in(;a))able  of  conceiving  any  iiilont. 
Com.  V.  Ilart,  2  Brewst.  (Pa.)  546  ;  Fonville  v.  State,  91  Ala.  39. 

And  the  burden  of  proving  that  he  was  in  such  a  condition  of  intoxication 
as  to  render  him  incapable  of  doing  a  wilful,  delil)erate,  and  premeditated 
act  rests  with  the  accused  in  a  prosecution  for  murder.  Honesty  v.  Com, 
81  Va.  283. 

So,  the  burden  of  proof  rests  with  one  who  relies  upon  insanity  as  an 
excuse  for  crime  to  establish  that  the  insanity  was  caused  by  an  liabitual 
and  long-continued  intejnperate  use  of  ardent  spirits,  and  not  as  an  imme- 
diate result  of  intoxication.     l'eo}tle  v.  Hell,  49  Cal.  485. 

And  delirium  tremens  alleged  as  a  defense  in  a  criminal  prosecution 
must  be  established  by  the  accused  by  evidence  proved  to  the  satisfaction  of 
the  jury.    State  v.  Thomas,  Iloust.  (^rim.  Rep.  (Del.)  511. 

And  the  burden  rt^ts  witli  the  defendant  in  the  appellate  court  on  an 
appea'  from  a  convicticm  in  a  crinnnal  case  in  which  it  wjis  found  that  tiie 
defendant  was  not  insane,  to  show  that  there  was  a  preix)nderance  of  evi- 
dence in  favor  of  the  defense.     Hoard  v.  State,  15  Lea.  318. 

The  contrary  r"./t'.— The  plea  of  insanity  as  a  defense  in  a  criminal  jiros- 
ecution  is  merely  a  denial  of  one  of  the  essential  allegations  against  the 
accused,  and  does  not  cast  the  burden  of  proof  of  its  existence  upon  the  de- 
fendant.    Hopps  V.  People,  31  111.  385. 

Within  this  rule  it  is  incumbent  Ujion  the  prosecution  to  prove  the  pres- 
ence of  every  ingredient  necessary  to  constitute  the  crime  charged  incliKJing 
the  necessary  soundness  of  mind.  Com.  v.  Gerade,  145  Pa.  289;  Stutv  v. 
Bartleff,  43  N.  H.  224,  80  Am.  Dec.  154;  Armstronf/  r.  State,  30  Fla.  170, 
17  L.  R.  A.  484:  Russell  v.  State,  53  Miss.  867;  Itallard  v.  State,  19  Neb.  0!0; 
Wright  v.  People,  4  Neb.  407;  OConnell  v.  People,  87  N.  Y.  377:  Brother- 
ton  V.  People,  75  N.  Y.  159;  Davis  v.  United  States,  160  U.  S.  469;  Dairi/  v. 
People,  116  Hi.  555. 

And  at  the  moment  of  the  commission  of  the  criminal  act  the  accused 
had  reason^  apprehension,  and  understanding  sufficient  to  enable  him  to 
discern  right  from  wrong.     Moett  v.  People,  85  N.  Y.  373. 

So,  the  burden  of  proof  in  a  prosecution  for  homicide  in  which  the  killing 
is  not  denied,  but  it  is  claimed  that  there  wjis  no  malicious  intent  because 
of  the  insanity  of  the  accused,  to  show  such  malicious  intent  rests  with 
the  state,  and  the  accused  is  not  entitled  to  the  opening  and  closing  of  the 
argument.    State  v.  Fetter,  32  Iowa,  49. 


STATE  V.  SCOTT. 


605 


But  an  instruction  in  a  prosecution  for  assnult  with  intont  to  kill,  that 
the  defendant  is  presumed  to  be  sane  until  he  convinces  the  jury  by  the 
evidence  th^.c  he  is  insane,  is  not  error  where  he  hiis  been  tried  lipon  the 
theory  that  the  burden  rested  with  the  prosecution  to  tiiiiintain  the  person's 
sanity.    O'Connell  v.  People,  87  N.  Y.  377,  41  Am.  Uep.  379. 

And  the  adoption  of  the  language  of  an  opinion  in  another  case  in  charg- 
ing the  jury  in  a  criminal  prosecution  that  to  establish  a  defense  of  insanity 
it  must  be  clearly  proved,  is  not  error  where  the  court  elsewlieie  charged 
the  jury  that  the  burden  of  establishing  beyond  a  reasonable  doubt  as  one 
of  the  elements  of  guilt  that  the  accused  was  not  insane  is  cast  upon  the 
prosecution.     Walker  v.  People,  88  N.  Y.  80. 

The  presumption  of  mental  soundness  continues  until  somo  evidence  has 
been  offered  tending  to  overthrow  it.  however,  and  the  stato  is  not  in  the 
first  instance  bound  to  introduce  evidence  to  prove  sanity.  Sunders  v. 
State,  94  Ind.  147;  Montag  v.  People,  141  111.  75. 

And  it  will  of  itself  sustain  the  burden  of  proof  which  is  devolved  upon 
the  state  until  it  is  rebutted  and  overcome  by  satisfactory  evidence  to  the 
contrary.    King  v.  State,  9  Tex.  App.  558;  Com.  v.  Eddy,  7  Gray,  583. 

Sanity,  being  the  normal  condition,  is  presumed,  and  the  prosecution  in  a 
criminal  case  may  rest  upon  the  presumption  without  other  proof,  and 
whoever  denies  it  must  prove  his  allegation;  but  when  the  presumption  of 
sanity  and  the  evidence  are  all  considered  the  prosecution  holds  the  affirm- 
ative.    Brotherton  v.  People,  75  N.  Y.  159;  McDongal  v.  State,  83  Ind.  24. 

The  state  in  a  criminal  prosecution  has  the  burden  of  showing  the  sanity 
of  the  accused  at  the  time  of  the  commission  of  the  criminal  act,  but  the 
presumption  of  sanity  is  sufficient  to  sustain  the  burden  of  proof  where  the 
accused  offers  no  testimony  to  meet  the  presumption.  Ford  v.  State,  73 
Miss.  734,  35  L.  R.  A.  117. 

And  a  statute  providing  that  the  defense  of  insanity  shall  be  set  up  by 
special  plea  does  not  change  the  rule.    Sanders  v.  State,  94  Ind.  147, 

Every  man  is  primarily  presumed  to  be  sane,  and  where  nothing  in  the 
testimony  suggests  otherwise,  there  is  no  obligation  to  establish  his  sanity 
in  a  criminal  action,  but  when  the  proof  warrants  a  reasonable  doubt  of  it 
jt  devolves  upon  the  state  to  remove  that  doubt  and  establish  sanity.  Cun- 
ningham V.  State,  56  Miss.  269,  31  Am.  Rep.  360. 

The  state  is  not  required,  in  the  first  instance,  to  introduce  evidence  to 
prove  sanity,  but  if  evidence  is  introduced  which  tends  to  shake  the  pre- 
sumption of  sanity  the  jury  must  then  consider  the  same  and  its  effect  upon 
the  main  issue  of  guilty  or  not  guilty  together  with  the  presumption  of  san- 
ity, the  presumption  of  innocence,  and  other  legal  presumptions  applicable 
to  the  case,  and  if  there  should  be  reasonable  doubt  as  to  whether  the  defend- 
ant was  sane  or  insane,  he  must  be  acquitt"d.  State  v.  Crawford,  11 
Kan.  33. 

And  where  there  is  proof  of  insanity,  whether  on  the  part  of  the  govern- 
ment or  of  the  accused,  it  is  incumbent  upon  the  prosecutor  to  establish  all 
the  elements  constituting  the  offense,  including  the  necessary  soundness 
of  mind.  State  v.  Bartlett,  43  N.  H.  224,  80  Am.  Dec.  154;  Furst  v.  State, 
31  Neb.  403;  Walker  v.  People,  1  N.  Y.  Crim.  Rep.  22;  Armstrong  v.  Sta'e 
80  Fla.  170,  17  L.  R.  A.  484;  Montag  v.  People,  141  111.  75;  State  v.  Craw- 
ford, 11  Kan.  32;  Com.  v.  Eddy,  7  Gray,  583;  People  v.  Garbutt,  17  Mich.  9, 
97  Am.  Dec.  163;  Cunningham  v.  State,  56  Miss.  369;  31  Am.  Rep.  860; 


'I'r  .  .    I. 


606 


AMERICAN  CRIMINAL  REPORTS. 


?| ,'!  ^ 


Walter  v.  People,  3J  N.  Y.  147;  (XConvell  v.  People,  87  N.  Y.  377,  41  Am. 
Rep.  079;  Com.  v.  Gernde,  145  Pa.  289;  McAllinter  v.  Territonj,  1  Wash. 
Terr.  300;  OBrien  v.  People,  48  Barb.  274;  King  v.  State,  9  Tex.  Apj).  rm. 

It  is  then  required  to  prove  sanity  as  a  necessary  element  to  coiistitutt' 
crime.    Jaminon  v.  People,  145  111.  357. 

And  estcablisli  that  the  accuseil  possessed  sufficient  mental  capacity  to 
comprehend  the  nature  of  the  act  complained  of.  Furat  v.  State,  31  Neb. 
408. 

Evidence  tending  to  show  the  insanity  of  the  accused  in  a  criminal  case 
does  not  shift  the  burden  of  proof  upon  the  prosecution,  however,  unless  it  is 
sufficient  to  create  a  reasonable  doubt  as  to  his  sanity.  People  v.  Finley, 
83 Mich,  482;  Jamison  v.  People,  145  111.  357. 

And  proof  of  insensibility  to  the  consequences  of  his  acts  on  the  part  of  a 
parson  accused  of  homicide,  and  of  absence  of  apparent  motive,  is  not  such 
evidence  of  insanity  as  will  cast  the  burden  upon  the  state  of  afiirmatively 
showing  that  the  accused  was  s.ane  at  the  time.  State  v.  Redemeier,  8  Mo. 
App.  1. 

Nor  is  evidence  in  a  criminal  prosecution  that  the  defendant  was  in 
trouble  with  his  family,  and  \\i\b  disturbed  in  mind  and  perhaps  somewhat 
excited,  sufficient  to  raise  a  reasonable  doubt  in  regard  to  his  sanity  which 
will  require  tlie  people  to  establish  his  sanity  in  order  to  convict.  Montug  v. 
People,  141  III.  75. 

And  the  fact  that  the  state  as  a  part  of  its  case  has  introduced  evidence 
of  tlie  mental  condition  of  the  accused  in  a  criminal  prosecution  teniling  to 
raise  an  inference  that  he  was  incapable  of  forming  a  criminal  design,  and 
that  such  inference  ha.s  been  strengthened  by  the  defendant's  evidence, 
does  not  cast  upon  the  state  the  burden  of  proving  the  defendant's  sanity 
beyond  a  reasonable  doubt.     State  v.  Hansen,  25  Or.  411. 

But  evidence  upon  the  prosecution  of  a  man  for  an  assault  upon  his  wife 
with  intent  to  kill,  tending  to  show  that  he  was  perfectly  rational  and  acted 
from  motives  of  revenge,  and  of  letters  sent  her  after  the  act  trying  to  effect 
a  reconciliation,  tending  to  show  that  lie  appreciated  the  cliaracter  of  his 
act  and  wiis  trying  to  prevent  her  from  testifying  against  him,  prima  facie 
establishes  his  sanity,  and  ca.sts  the  burden  upon  him  to  disprove  it,  though 
the  prosecution  asked  no  questions  on  the  trial  as  to  his  sanity.  Lilly  v. 
People,  148  111.  407. 


Frknch  V.  State. 


(93  Wis.  825.) 


MUKDER  :    Change  of  venue— Insanity — Trial  of  issve— Evidence— Drunh 
enneas — Delirium    tremens. 


I.  Under  a  statute  providing  for  application  by  petition,  in  a  criminal 
case,  for  a  change  of  venue,  and  where  a  change  of  venue  is  applied 
for  on  account  of  the  prejudice  of  the  judge,  the  court  niay,  in  lieu  of 
awarding  b  change  of  venue,  moke  a  request  of  the  judge  in  an  adjoin- 


1  ■'JB.'W-'.  ' 


^WT^ 


FRENCH  V.  STATE. 


607 


V       S\ 


Ing  circuit  to  hold  the  court  where  the  case  is  pending,  and  trj-  the  same; 
defendant  can  not  couple  his  application  for  a  change  of  venue  with  a 
'•ondition  that  the  case  be  not  sent  out  of  the  county. 

2.  A  st.'.tute  which  provides  for  an  inijuisition  where  there  is  a  probability 

til'/.;  the  accused  is,  at  the  time  of  his  trial,  insane,  and  thereby  inca- 
pacitated to  act  for  himself,  to  determine  whether  he  is  so  insane,  which 
is  in  affirmance  of  a  power  of  the  court  at  common  law,  is  in  aid  of, 
and  not  in  derogation  of,  the  bill  of  rights,  securing  to  accused  a  fair 
and  impartial  trial,  the  result  of  the  inquisition  having  no  legal  effect 
on  the  main  issue. 

3.  Under  such  a  statute,  providing  that,  when  the  jury  disagree  on  the 

trial  of  the  special  issue  of  accused's  insanity  at  the  time  of  the  com- 
mission of  the  alleged  offense,  the  court  shall  forthwith  order  the  trial 
on  the  issue  of  not  guilty  to  proceed,  and  the  question  of  insanity 
involved  in  such  special  plea  "shall  be  tried  and  determined  by  the 
jury  with  the  plea  of  not  guilty,"  defendant  can  not  have  a  second  trial 
on  the  special  issue,  there  having  been  a  disagreement  on  the  first. 

4.  Tlie  jury  having  disagreed  on  the  special  issue  of  insanity,  defendant 

cjin  not  obtain  the  affirmative  of  the  issue  of  his  sanity  or  insanity,  and 
the  right  to  open  and  close,  by  admitting  the  homicide,  and  alleging 
in  defense  his  insanity  at  the  time  thereof. 

5.  Exclusion  of  evidence  of  defendant's  acts,  conduct,  and  declarations 

subsequent  to  the  fourth  day  after  the  homicide,  showing  the  continu- 
ance of  his  condition  the  same  as  immediately  before  the  homicide, 
offered  on  the  question  of  his  insanity  at  the  time  of  the  killing,  is 
error,  especially  where  it  was  claimed  by  the  prosecution  that  his  con- 
dition at  the  time  of  the  killing  was  the  result  of  protracted  and  excess- 
ive intoxication,  producing  a  fit  of  drunken  excitement  and  fury. 

6.  In  a  homicide  case  it  is  error  to  admit  testimony  that  a  man  suffering 

from  delirum  tremens  has  no  more  control  over  his  actions  in  that 
respect  than  a  man  suffering  from  delirium  protluced  from  any  other 
cause,  but  still  he  is  sane;  as,  while  drunkenness  is  no  excuse,  delirium 
tremens  caused  by  drunkenness  may  be  an  excuse,  if  it  produces  such 
a  state  of  mind  as  would,  if  otherwise  produced,  relieve  the  person  from 
responsibility. 

Appeal  from  Circuit  Court,  Ashland  County;  John  K.  Parish, 
Judge. 

William  G.  French  was  convicted  of  murder,  and  brings 
error.    Reversed. 


A  former  conviction  of  the  plaintiff  in  error  for  the  murder 
of  Gavin  M.  Steele  was  reversed,  and  a  new  trial  granted. 
85  Wis.  400.  The  case  came  on  for  another  trial,  when 
an  affidavit  of  the  defendant  was  filed  that  the  circuit  judge 
was  prejudiced,  and  a  motion  was  made  for  a  change  of  venue 
to  Ciiippewa  county,  which  was  granted,  but  the  order  was 
subsequently  vacated   by  consent.    The  court  required  the 


608 


AMERICAN  CRIMINAL  REPORTS. 


h    In  '•  IT     i 


defendant  to  elect  whether  he  would  withdraAv  the  affidavit  of 
prejudice  which  had  been  filed,  or  whether  he  would  move 
thereon  for  a  change  of  venue.  The  defendant's  counsel  then 
withdrew  the  affidavit,  without  prejudice  to  his  right  to  file 
another  before  the  trial  commenced.  Subsequently  the  defend- 
ant moved  to  refile  the  affidavit,  and  renewed  the  motion  for 
a  change  of  venue,  on  condition  that  the  court  should  not  send 
the  case  out  of  the  county,  and  that  unless  the  court  called  in 
another  judge  to  try  the  case  the  defendant  withdrew  his  affi- 
davit and  motion.  The  court  held  that  the  motion  must  be 
made  in  the  usual  form,  and  unconditionally,  and  overruled  the 
motion  as  thus  made.  The  district  attorney  filed  an  informa- 
tion that  there  was  a  probability  that  the  defendant  was  then 
insane,  and  suggesting  that  an  inquisition  be  made  as  to  his  san 
ity.  The  defendant's  counsel  objected  on  tlie  ground  that  the 
defense  of  insanity  would  be  made,  and  that  Sec.  4700,  Kev.  St., 
providing  for  such  inquisition,  was  in  conflict  with  Sec.  7,  Art. 
1,  Const.  Wis.,  and  void,  and  demanded  that  the  trial  proceed 
on  the  issues  already  formed.  The  objections  and  demand 
were  overruled.  The  jury,  upon  such  inquisition,  found  the 
defendant  sane  enough  at  that  time  to  stand  his  trial.  A 
special  plea  of  insanity  at  the  time  of  the  commission  of  the 
alleged  offense  was  interposed,  upon  which  issue  was  taken. 
The  defendant  filed  his  affidavit  alleging  that  W.  F.  Shea,  pro- 
posed as  assistant  prosecutor,  for  various  reasons,  was  not  a 
proper  person  to  act  as  such,  and  considerable  evidence  was 
adduced  upon  this  point.  The  court  held  that  he  was  not 
retained  by  any  private  person  in  this  case,  or  any  other 
founded  on  the  same  facts,  and,  as  he  was  otherwise  competent, 
overruled  the  objections.  A  trial  was  then  had  upon  the  issue 
of  insanity,  and  the  jury  failed  to  agree  and  were  discharged. 
Another  jury  was  then  impaneled  to  try  the  defendant  on  the 
general  plea  of  not  guilt}',  and  the  question  of  the  defendant's 
sanity,  as  involved  therein,  as  required  by  the  statute  (Sanb. 
&  B.  Ann.  St.  §  4697).  The  defendant's  counsel  asked  that 
the  court  proceed  to  another  trial  on  the  special  plea,  but  this 
request  was  denied.  The  defendant's  counsel  then  moved  to 
admit  the  homicide,  and  to  allege  in  defense  that  the  defend-' 
ant  was  insane  at  the  time,  but  upon  the  express  condition 
that  such  admission  should  give  him  the  affirmative  of  the  case; 
but  the  district  attorney  refused  to  accept  the  proposition,  and 


•  ff'  ,v' 


FRENCH  V.  STATE. 


609 


the  court  held  that  the  state  would  take  the  burden  of  proof, 
and  proceed  in  the  usual  way. 

The  circumstances  of  the  killing,  which  took  place  March  5, 
1891,  in  the  drug  store  of  the  deceased,  as  shown  on  the  part 
of  the  state,  were,  that  French  came  in  and  made  a  demand  of 
Steele  for  some  money  the  latter  had  for  safe  keeping,  which 
he  repeated.  Steele  asking  Mrs.  French,  who  was  present,  if 
he  should  give  French  the  money,  she  said,  "  No,  no.  Will; 
you  don't  need  it."  French  said  to  Steele,  "  G-d  d — n  you ! 
I  will  make  you  give  it  to  me."  Steele  said,  "  You  know  that 
you  can't  make  mo  give  it  to  you."  French  then  drew  a  revol- 
ver from  his  pocket,  and  said,  "  Steele,  G-d  d — n  you,  die !" 
and  shot  him.  11(3  shot  at  Steele  three  times.  They  were 
face  to  face,  about  eight  or  ten  feet  apart.  Steele  died  almost 
instantly.  About  a  minute  after  French  came  and  looked  at 
him,  and  said  "  Poor  Gavin  I  The  best  friend  I  or  my  family 
ever  had!"  Others  testified  to  the  same  statement.  There 
were  several  witnesses  to  the  killing.  Two  testified  that  French 
said,  after  the  sliooting,  "  He  has  always  been  a  traitor  in  our 
family."  The  witnesses  said  that  French  seemed  excited,  angr}'; 
some  of  them,  that  they  thought  he  was  under  the  influence  of 
liquor — his  eyes  looked  bright,  inflamed.  They  all  thought  him 
sane,  from  what  they  knew  and  saw  of  him.  The  evidence 
tended  to  show  that  French  had  been  given  to  excessive  drink- 
ing, and  Steele  and  others  had  put  up  powders  to  relieve  him; 
that  he  insisted  on  having  morphine  powders,  and  they  gave  him 
quinine  instead.  Dr.  Reinhart  testified  to  seeing  French  on 
the  day  of  the  homicide,  and  in  the  af  ternoim  at  the  jail;  that, 
up  to  the  time  of  the  homicide,  he  saw  nothing  that  would 
cause  him  to  believe  him  insane.  At  the  jail  his  actions  were 
not  those  of  a  man  in  his  right  mind.  He  was  very  much 
excited  and  nervous;  wanted  bromide  to  quiet  him.  He  went 
on  talking  about  the  trouble  in  a  rather  incoherent  and  excit- 
able  manner.  He  said  he  was  right  in  the  matter;  that  God 
had  directed  him.  Mentioned  certain  little  improprieties  that 
were  going  on  in  his  family,  and  he  thought  Steele  was  assist- 
ing persons  to  carry  them  out.  His  conversation  was  such  as 
you  might  expect  from  a  man  not  mentally  sound.  His  a]> 
pearance  and  actions  were  not  those  of  a  man  in  his  right  senses, 
but  there  was  an  excitement  which  would  cover  up  the  ordinary 
symptoms  of  insanity.  Very  considerttble  evidence  was  given 
89 


CIO 


AMERICAN  CRIMINAL  REPORTS. 


fS-#tr      t' 


on  the  part  of  the  state,  b}'  non-experts,  tending  to  show  that 
in  their  opinion  the  defendant  was  sane  at  the  time  previous 
to  the  homicide  when  they  conversed  with  him.  Tlio  oasliicr 
of  the  Northern  National  Bank  testified  to  his  calling  on  him  on 
the  morning  in  question  to  get  a  loan  of  money;  had  various 
deals  with  him;  judged  he  was  under  the  inlluence  of  liquor 
but  thought  he  was  sane.  Louise  Doucette  testified :  That 
she  was  working  at  the  defendant's  house  the  day  Steele  was 
shot.  That  the  defendant  came  home  at  11  o'clock  in  the 
forenoon;  wanted  a  cup  of  coffee;  said  he  was  going  up  to 
Steele's,  and  if  Steele  did  not  give  him  his  money  ho  Avould 
shoot  him.  Steele  was  taking  his  meals  at  defendant's  house 
at  the  time.  A  Mr.  Duket  had  been  boarding  there  up  to 
within  about  three  weeks.  That  the  defendant  had  beeii  often 
under  the  influence  of  liquor,  particularly  just  before  the  shoot- 
ing. On  cross-examination  she  testiiied  that  when  ho  came 
to  the  house  that  day  he  looked  wild,  his  eyes  were  glassy, 
and  he  looked  pale,  and  was  trembling.  lie  said:  "  Tlie 
devil  has  always  been  before  me  and  now  he  has  got  to  get 
behind  me."  Two  days  before  he  said:  "Louise,  things  liave 
been  getting  pretty  serious  at  the  house  for  some  time,"  and 
she  told  him  "Yes."  Asked  if  she  saw  Duket  stroke  Mrs. 
French's  face,  and  she  told  him  "  Yes."  He  talked  about 
powders  being  put  in  his  coffee  that  made  him  sick.  This 
was  before  he  went  to  Marengo.  Two  hypothetical  questions, 
of  considerable  length,  founded  on  the  evidence  as  claimed  by 
the  prosecution,  were  propounded  to  an  expert  witness  of 
extensive  experience,  who  testified  that  he  did  not  see  in  the  facts 
embraced  in  them  any  evidence  which  indicated  to  his  mind 
that  the  defendant  was  insane;  that  in  his  opinion  the  defend- 
ant was  sane. 

On  the  part  of  the  defense,  considerable  evidence  was  given 
tending  to  show  insanity  on  the  part  v/f  the  defendant  before 
and  when  the  homicide  occurred.  One  Rea,  his  brother-in- 
law,  testified  that  he  came  to  his  house  in  the  afternoon  four 
days  before  the  homicide.  Was  very  much  excited,  and  seemed 
in  great  trouble.  He  burst  out  crying,  then  he  would  curse  a 
while,  and  would  pray  a  while.  Said  he  had  great  trouble  in 
his  family;  there  were  parties  trying  to  ruin  his  home.  He 
was  very  much  excited,  and  looked  dangerous.  His  eyes  were 
glassy  looking,  and  he  trembled  and  seemed  very  nervous.    He 


^^ww^^^ 


FRENCH  V.  STATE. 


611 


said  Gavin  M.  Steele  and  Dulcet  were  trying  to  ruin  his  home, 
and  ho  spoke  incoherently.  The  burden  of  his  song  Avas  that 
Steele  and  Duket  were  trying  to  conspire  against  him,  to  ruin 
his  home  and  family.  Said  he  had  been  shot  at,  and  the  ball 
passed  over  his  shoulder, when  he  was  on  the  way  to  the  camp 
at  Marengo.  lie  remained  at  the  house  of  witness  during  the 
night,  and  until  8  or  9  o'clock  the  next  morning.  Saw  him 
quite  often  during  the  night,  and  there  was  no  change  in  his 
condition,  the  strain  of  his  conversation  being  that  Steele  and 
Duket  were  trying  to  wreck  his  home.  There  was  noth- 
ing to  indicate  that  he  was  in  a  state  of  intoxication,  or 
that  he  had  been  drinking.  Thought  he  was  insane,  but 
knew  he  had  be3n  periodically  addicted  to  the  use  of  liquors 
for  vears.  lie  did  not  undress,  but  his  father  laid  down  on 
the  bed  beside  him,  and  his  sister  also  stayed  with  him.  Mrs. 
Rea's  evidence  was  to  the  same  effect,  and  that  the  defendant 
said  Steele  had  given  a  dirk  knife  to  Nugent  to  kill  him,  and 
his  life  was  in  danger;  that  they  were  conspiring  to  kill  him, 
and  he  could  not  turn  around  but  he  met  these  things  face  to 
face;  that  powders  had  been  given  by  his  wife,  or  Steele,  to 
curse  or  kill  him.  He  raved  all  night — all  about  his  family 
troubles — his  wife;  his  children  were  homeless,  and  Duket 
was  trying  to  take  his  place;  that  his  home  was  wrecked  and 
ruined,  and  his  peace  of  mind  gone.  She  thought  he  was 
insane.  He  got  up  in  the  night  to  take  his  revolver  from  her, 
and  put  it  back  in  his  coat  pocket,  and  said,  "Leave  it 
alone,"  and  he  watched  it  all  night — kept  his  eye  on  it.  He 
got  up  a  second  time  to  see  if  the  detectives  were  watching 
his  house.  He  had  two  of  them  watching  his  house.  He 
said  he  had  hired  them  to  watch  Duket,  and  see  that  he  did 
not  enter  his  home.  The  defendant's  father  gave  similar 
evidence,  and  that  Duket  frequently  went  to  see  Mrs. 
French,  and  was  very  attentive  to  her,  while  the  defendant 
was  absent  at  his  camp;  that  she  and  Duket  were  sitting 
up  from  2  to  4  o'clock  in  the  morning;  that  he  remonstrated 
with  her,  but  to  no  effect,  and  tried  to  get  Steele  to  assist  him, 
but  he  told  them,  "  Sit  up  as  long  as  you  liko  but  get  up  in 
the  morning;"  that  he  told  defendant  about  it  and  defendant 
warned  Duket  not  to  have  anything  to  do  or  say  to  his 
wife,  and  not  to  speak  to  her  if  he  met  her  on  the  street. 
Duket  answered,  "  Why  ask  me  to  do  a  thing  1  can't  help 


[  1 


!|  ;  I 


i 


i  ■ '  I 


:m 


I,  <«  I,        I 


P!i' 


i,«*a 


oia 


AMERICAN  CRIMINAL  REPORTS. 


doing  ?"  Finally  defendant,  in  February,  ordered  Dukot  out  of 
his  house,  and  took  a  gun,  in  order  to  shoot  him,  as  lie  sup- 
posed, but  witness  got  it  from  him.  That  ho  thought  the 
defendant  insane.  The  night  before  the  shooting  tiie  defend- 
ant slept  at  some  boarding  Louse.  In  the  morning  he  t(jhl 
witness  that  he  was  going  to  <leinand  that  money  of  Steele, 
about  §500,  that  he  had  turned  over  to  his  wife  for  safe  keej)- 
ing.  He  had  been  addicte<l  to  the  use  of  liquors  for  years, 
and  on  some  occasions  drank  to  excess.  "VVilliam  Seen-er. 
employed  at  defendant's  lumber  camp,  and  avIio  came  from 
there  with  him,  March  1st,  to  tiie  house  of  Ilea,  his  brother- 
in-law,  testified  to  the  effect  that  February  24:th,  at  the  camp, 
defendant  desired  witness  to  arrest  parties  who  had,  he  saiil, 
been  shooting  at  him,  and  pointed  out  a  stump  as  one  wlio  liad 
shot  at  him.  His  eyes  looked  wild,  and  stuck  out  large,  and  he 
was  very  blue  in  the  face,  That  night,  after  he  had  laid  down 
he  jumped  up  and  went  to  the  window,  and  said  ho  could  see 
the  one  who  was  going  to  shoot  him.  It  was  only  a  tree. 
He  required  blankets  to  be  nailed  up  at  the  Avindows,  so  no 
one  could  look  through.  About  the  middle  of  the  night,  heard 
him  out  doors,  and  he  came  in  pretty  near  frozen  to  death. 
He  said  there  was  a  conspiracy  to  use  him  up  and  get  rid  of 
him;  that  Duket  and  Steele  were  in  the  conspiracy.  He  went 
out  of  the  camp  that  morning,  and  returned  towards  evening. 
He  said :  **  I  have  got  now  to  the  bottom  of  all  my  troubles. 
Steele  is  at  the  head  of  everything."  He  looked  kind  of  queer 
and  wild.  Went  with  him  to  Ashland,  March  1st,  anu  he 
returned  to  camp  again.  The  day  before  the  shooting,  wit- 
ness and  one  Nugent  went  with  him  to  Ashland.  Saw  him  at 
11  o'clock  the  next  day  at  the  Colby  House.  lie  was  to 
return  to  the  camp  after  dinner.  All  at  once  he  jumped  up 
and  left  witness.  His  eyes  looked  very  dim  and  wild — blurred 
like.  Witness  thought  him  insane.  Other  witnesses  testified, 
in  substance,  the  same  as  to  what  occurred  at  the  camp.  One 
Armstrong  testified  to  meeting  the  defendant  on  tlie  sidewalk 
on  the  morning  of  the  homicide.  That  he  tapped  witness  on 
the  shoulder,  and  said,  "  Ben,  they  are  trying  to  do  me  up." 
That  he  had  quite  a  wild  look,  and,  from  the  look  of  his  eyes, 
he  did  not  care  to  remain  in  his  company.  That  they  walked 
along  a  little  way,  and  he  asked  Avitness  to  take  a  drink  with 
him,  and  witness  said  to  him:  "  You  have  had  enough.    You 


".i.«|ipU'M""; 


FRENCH  «.  STATE. 


618 


had  bettor  go  on  down  home."  Thought  lio  was  bordering 
on  delirium  tremens,  or  was  coming  out  of  it,  something  of 
the  kind.  Had  tliought  many  times  he  was  not  in  his  riglit 
mind,  and  was  still  of  the  same  oi)ini()n.  liobert  Patrick  saw 
defendant,  on  the  day  of  the  liomiciue,  between  10  and  half- 
past  11,  at  the  Colby  House.  lie  grabbed  witness  by  the  hand 
and  said,  "  How  do  you  do  'i "  He  was  a  little  wild,  and  said : 
"  I  am  having  trouble.  1  o|)ened  my  doors,  my  homo,  to  him, 
and  made  a  friend  of  him,  and  they  are  trying  to  rob  me  out 
of  my  money  and  my  home."  lie  was  talking  a  little  loud  ; 
turned  to  the  left  and  went  to  talking  to  his  father.  He  looked 
wild,  his  eyes  were  bright  and  glassy,  and  "  I  saw  at  once  he 
was  off  his  base  a  little.  He  was  pale,  and  think  he  was 
insane."  Several  other  witnesses  testified  to  the  same  or  sim- 
ilar declarations  and  conduct  of  the  defendant  shortly  preced- 
ing the  day  of  the  shooting.  Robert  McDonald,  prison  guard 
at  the  Ashland  jail,  testitied  to  seeing  the  defendant  iie  first 
day  he  was  brought  to  the  jail ;  that  he  looked  wild  and 
excited,  and  talked  and  raved  a  good  deal  about  his  family 
trials  and  troubles,  snakes  and  vipers,  and  sucli  talk  as  that — 
about  a  conspiracy  to  injure  his  home,  and  rob  him  of  his  wife 
and  property.  Spoke  of  it  as  if  it  had  been  going  on  for  a 
long  time.  Mentioned  Duket's  name  in  it,  and  the  name  of 
Mr.  Steele  in  the  conspiracy.  The  next  day  he  wanted  to  go 
down  town,  and  persisted  in  it.  He  was  excited,  wild,  kind 
of  crazy,  sometimes.  Sometimes  he  was  quite  sensible.  On 
the  following  day  there  were  some  spells  that  he  seemed  to  be 
sane.  When  something  was  said  in  regard  to  his  troubles  or 
family  affairs,  he  seemed  to  become  insane.  On  the  fourth 
da}'  there  was  no  material  change,  as  compared  with  the  third 
day.  Defendant's  counsel  asked,  "  How  was  he  on  the  follow- 
ing day  ? "  This  was  objected  to  as  incompetent,  irrelevant, 
and  immaterial,  and  too  remote  in  time.  The  objection  was 
sustained,  the  court  stating,  in  substance,  that  the  defend- 
ant's counsel  would  be  precluded  from  showing  his  con- 
dition on  the  fifth  day ;  adding,  "  I  am  Avilling  for  you  to 
show  his  appearance  about  that  time,  without  there  is  some 
radical  change."  Witness  saw  defendant  daily  from  the  time 
he  was  committed  to  jail,  March  5,  1891,  to  the  time  he  was 
taken  away  after  the  trial,  the  latter  part  of  May,  or  the  early 
part  of  June,  1891.    He  was  asked  by  defendant's  counsel  to 


1*11 '< 


5 


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6U 


AMERICAN  CRIMINAL  REPORTS. 


describe  his  appoaranco  and  conduct  durin;if  that  period.  Tills 
Avas  objected  to  and  the  objection  was  sustained.  The  <lofon(l- 
ant's  counsel  then  offered  to  prove  by  the  witness  that  ho  saw 
the  defendant  daily  from  March  5,  1891,  until  the  bcfriniiing 
of  his  trial,  in  May  of  that  year,  and  from  then  until  lie  was 
taken  to  the  state  prison,  about  the  middle  of  June,  181)1;  that 
the  appearance  and  conduct  of  the  defendant  during  all  that 
time  was  the  same  as  it  was  on  the  day  of  the  homicide,  and 
the  days  succeeding,  concerning  which  the  witness  had  tes- 
tified; that  his  eyes  had  the  same  ajipearance,  and  his 
conduct  and  talk  were  of  the  same  character,  in  refer- 
ence to  the  same  subject.  The  court  stated  that  it  did 
not  think  there  Avas  anything  in  this,  new;  that  it  could 
see  no  reason  why  it  should  be  admitted,  us  it  was 
merely  cumulative.  Clarence  Snyder,  the  president  of  the 
state  board  of  control,  testified  that  the  board  meets  at  the 
state  prison  four  times  a  year;  that  he  saw  the  defendant  a 
number  of  times  between  July  1,  1891,  and  June,  1893,  and 
he  appeared  before  the  board  at  times.  At  the  suj^gestion  of 
the  court,  and  with  the  assent  of  the  district  attorney,  the 
defendant's  counsel  offered  to  prove  by  the  witness  that  the 
defendant  appeared  before  the  board  to  present  to  it  reasons 
why  ho  should  be  given  his  liberty,  and  that  on  several  occa- 
sions of  the  kind  the  defendant  deported  himself  in  a  manner 
that  convinced  the  witness  that  he  was  insnnc;  that  his  appear- 
ance, the  brightness  of  his  eves, 
trembling  of  his  person,  and  1' 
ods  of  presenting  his  case, 
in  support  of  what  he  ti  m\  his  constitutional  rights, 
Le  presented  a  Bible  and  lilue  li(»ok  o'  Wisconsin;  that  on  one 
occasion,  when  allowed  to  present  las  case,  he  presented  a 
disjointed  harangue,  and  discussed  his  belief  in  the  e  -it- 
ence  of  a  conspiracy  of  which  Steele  and  Dukot  wore  mem- 
bers, to  bresik  up  his  home  and  destroy  his  family;  that  he 
became  so  violent  on  one  occasion,  in  presenting  his  case, 
about  April  1,  1893,  that  he  had  to  be  forcibly  carried  'loni 
the  presence  of  the  board  by  the  officers  of  the  prison;  and 
that,  at  the  times  mentioned,  witness  believed  the  defendant 
was  insane.  Objection  being  made,  the  court  excluded  the 
offered  evidence.  The  defendant's  counsel  made  the  same 
offer,  somewhat  more  in  detail,  to  prove  the  same  matters  by 


lie   i»,uiwi    of   his    face, 
..ible  manner  and  meth- 
ibuted  tot'  it  belief;  that, 


FRENCH  V.  STATE. 


613 


Mr.  Jones,  another  member  of  the  board,  and  also  by  Mr. 
lirowri,  the  prison  chaphiin.  These  oll'ors  wore  also  rejected. 
A  medical  expert  of  extensive  cxi)erience  testilied,  i..  answer 
to  a  lengthy  hyi)othetical  question,  that  he  should  say  that  on 
the  day  of  the  homicide  the  defendant  was  insane.  The  defend- 
ant was  found  guilty  of  murder  in  the  second  degree,  and, 
having  been  sentenced  accordingly,  he  brought  this  writ  of 
error. 

E.  J.  Dochcn/,  for  plaintiff  in  error. 

Richai'd  SLlijht  and  J.  L.  Erdall,  Asst.  Atty.  Gen.,  for  the 
State. 


PiNNKY,  J.  The  right  to  a  change  of  venue  depends  en- 
tirely upon  the  statute.  It  is  not  guaranteed  by  Const.  Art.  1, 
§  7,  or  any  other  provision  of  the  constitution.  As  the  right 
exists  only  by  virtue  of  the  statute,  a  change  of  venue  can  be 
had  only  upon  the  terms  the  statute  i)rescribes.  The  statute 
(Sanb.  *fe  R  Ann.  St.,  ^-tOSOa)  provides  that  when  a  change  of 
venue,  in  any  criminal  case  in  any  court  of  record  in  this  state, 
"shall  be  applied  for  in  any  such  court  in  the  manner 
provided  by  law,  on  account  of  the  prejudice  of  the  judge 
thereof,  such  court  may,  in  lieu  of  awarding  a  nhange  of 
venue  therein,"  make  a  request  of  the  circuit  judge  in  an 
adjoining  circuit  to  hold  the  court  where  ^uch  action  is 
pending,  and  try  the  same.  By  section  4080  it  is  contemplated 
that  the  application  may  be  by  petition.  The  right  to  a 
change  of  venue  is  thus  made,  by  the  statute,  subject  to  the 
right  of  the  court,  in  its  discretion,  to  call  in  some  other  judge 
to  trv  the  action,  in  which  case  no  change  for  that  cause  is  to 
be  awarded.  The  statute  does  not  authorize  the  defendant  to 
make  an  application  for  a  change  of  venue,  coupled  with  the 
condition  that  the  court  shall  not  send  the  case  out  of  the 
county,  or  shall  call  in  another  judge  to  try  it,  thus  dictating 
to  the  court  its  action  upon  a  subject  which  the  law  has  con- 
fided solely  to  its  discretion.  The  filing  of  an  affidavit  of  prej- 
udice of  the  circuit  judge,  coupled  with  such  condition,  did  not 
deprive  the  court  of  jurisdiction  to  proceed  with  the  trial,  but 
was,  in  law,  equivalent  to  a  request  not  to  order  a  change  of 
venue.  The  defendant  can  not  assign  as  error  the  fact  that 
the  court  complied  to  that  extent  with  his  request,  and  it  was 


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616 


AMERICAN  CPIMINAL  KEPORTS. 


therefore  a  matter  of  choice,  and  not  of  compulsion,  that  the 
defendant  went  to  trial  with  the  affidavit  of  prejudice  of  the 
circuit  judge  on  fde. 

The  statute  (Rev.  St.,  §  4700)  providing  for  an  inquisition, 
where  there  is  a  probability  that  the  accused  is,  at  the  time  of 
his  trial,  insane,  and  thereby  incapacitated  to  act  for  himself 
to  determine  whether  he  is  so  insane,  is  substanlially  a  provis- 
ion in  affirmance  of  a  power  the  court  had  at  common  law  in 
such  cases,  as  abundantly  appears  from  the  authorities.  4  Bl. 
Comm.  24,  25;  Crocker  v.  Stale,  60  Wis.  556,  and  cases  cited. 
This  provision  is  in  aid  of,  and  not  in  derogation  of,  the  con- 
stitutional provision  (article  1,  §  7)  securing  to  the  accused  a 
fair  and  impartial  trial.  The  result  of  such  inquisition  can 
have  no  legal  effect  upon  the  main  issue. 

Wo  have  considered  the  evidence,  by  affiilavits  and  other- 
wise, upon  the  subject  whether  W.  F.  Shea  was  a  proper  and 
competent  person  to  assist  the  district  attorney  in  the  prose- 
cution of  the  case.  We  adhere  to  what  was  said  in  BicmeJ  v. 
SUite,  71  Wis.  444,  451,  that  courts,  in  administering  chapter 
354,  Laws  1887,  "  should  permit  or  select  only  such  assistants 
as  are  unprejudiced  and  impartial,  as  the  prosecutor  provided 
by  law; "  and  we  are  unable,  from  the  evidence,  to  say  tliat 
the  discretion  of  the  court  was  not  fairly  exercised  in  this 
res})ect,  or  that  the  ai)poi)itment  was  not  one  proper  to  bo 
made.  There  is  no  reason  to  think  that  Mr.  Shea  was  not  as 
unprejudiced  and  impartial  as  the  prosecutor  provided  by  law. 
There  was  no  error  in  appointing  him. 

After  the  jury  had  failed  to  agree  on  the  special  issue  of 
insanity  of  the  defendant,  a  request  on  his  part  that  the  court 
proceed  to  another  trial  on  that  issue  Avas  properly  denied,  as 
the  statute  provides,  in  such  event,  the  court  shall  proceed  to 
trial  on  the  main  issue  when  the  question  of  insanity,  involved 
in  such  sixjcial  issue, "  shall  be  tried  and  determined  by  the  jury, 
with  the  plea  of  not  guilty."  Eev.  St..  §  4697,  as  amended  by  Ch. 
164,  Laws  1883.  There  was  no  error  in  refusing  to  permit  the 
defendant  to  admit  the  homicide  in  order  to  obtain  the  aHirm- 
ative  of  the  issue  of  his  sanity  or  insanity,  involved  in  the 
special  issue  with  the  general  plea  of  not  guilty,  or  in  refusing 
to  allow  the  defendant  the  opening  and  closing  on  such  trial. 
Where  the  jury  have  disagreed  on  the  trial  of  the  special  plea 
of  insanity,  the  trial  that  follows  is  to  be  conducted  in  like  man- 


FRENCH  V.  STATE. 


617 


ner  as  before  the  statute,  and  in  all  respects  as  therein  pro- 
vided;  and  the  general  verdict  of  guilty  will  conclude  the 
special  plea  of  insanity,  as  well  as  the  plea  of  not  guilty.  But, 
if  it  is  found  that  the  accused  was  insane  at  the  time  of 
the  commission  of  the  alleged  offense,  the  statute  requires 
that  the  jury  shall  also  find  if  he  is  now  sane.  This  is 
with  the  view  of  determining  the  question  of  his  future 
restraint.  Tlie  statute  does  not  warrant  any  method  of  plead- 
ing or  practice  upon  the  trial  of  the  plea  of  not  guilty  that 
would  change  the  right  of  opening  and  closing  from  that  which 
existed  before  it  was  enacted.  To  have  allowed  the  defend- 
ant's request  would  have  been  equivalent  to  permitting  the 
defendant,  in  substance,  to  make  an  admission  of  the  homicide, 
and,  specially  pleading  or  insisting  upon  any  matter  really 
included  in  the  plea  of  not  guilty  of  thecrime  charged,  as,  that 
he  committed  the  homicide  in  self-defense,  or  the  like,  to  obtain 
the  oj)ening  and  closing  of  the  case.  Such  a  practice  is  wholly 
unauthorized  by  the  statute  regulating  pleadings  and  trials  in 
criminal  cases.  The  validity  of  Chap.  161,  Laws  1883,  in 
respect  to  specially  pleading  the  defense  of  insanity,  and  the 
method  of  trial  of  such  issue,  as  well  as  of  the  plea  of  not 
guilty,  was  fully  sustained  in  Bennett  v.  State,  57  Wis.  09. 

The  exclusion  of  evidence  offered  on  the  part  of  the  defend- 
ant, of  his  acts,  conduct,  and  declarations  occurring  subsequent 
to  the  fourth  day  after  the  homicide,  and  offered  as  bearing 
upon  the  question  of  his  insanity,  was,  we  think,  plainly 
erroneous.  It  is  very  generally  agreed  that  evidence  of  the 
acts,  conduct,  and  statements  of  the  accused  after,  as  well 
as  before  the  homicide,  are  admissible  to  show  the  mental 
condition  of  the  accused,  and  as  bearing  upon  the  question  of 
his  sanity.  2  Greenl.  Ev.  Sec.  371;  1  Bish.  Cr.  Law,  Sec.  385; 
Busw.  Insan.,  Sec.  216;  Grant  v.  Thompson,  4  Conn.  203;  Free- 
man V.  People,  4:  Denio,  9;  People  v.  Wood,  126  N.  Y.  249;  State 
V.  Lewis,  20  Nev.  333, 342.  Such  evidence  is  admitted  on  the 
ground  Uiat  the  facts  are  '*  so  connected  with  or  correspond  to 
evidence  of  disordered  or  weakened  mental  condition  preceding 
the  tine  of  the  commission  of  the  offense  as  to  strengthen  the 
inference  of  continuance,  and  carry  it  by  the  time  to  which 
the  inquiry  relates,  and  thus  establish  its  existence  at  that 
time,  or  whenever  they  are  of  such  a  character  as  of  them- 
selves to  indicate  unsoundness  to  such  a  degree,  or  of  so 


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618 


AMERICAN  CRIMINAL  REPORTS. 


permanent  a  nature,  as  to  have  required  a  longer  period  tlian 
the  interval  for  its  production  c  development."  6V?/i.  v. 
Pomeroy,  117  Mass.  143,  148;  Boiling  v.  State,  54  Ark.  588- 
Com.  V.  Trefethcn,  157  Mass.  180,  and  cases  cited.  The  evi- 
dence offered  a[)pears  to  have  been  rejected  because  it  re- 
lated to  matters  subsequent  in  point  of  time,  that  it  was  cumu- 
lative, that  it  was  evidence  of  the  defendant's  own  conduct 
while  under  confinement  charged  with  the  crime,  offered  in 
his  own  favor,  and  that  it  related  to  matters  occurring  after 
four  days  from  the  commission  of  the  offense.  Wliile  such 
evidence  is  competent,  and  from  it  the  state  of  mind  or  insan- 
ity of  the  accused  may  be  inferred,  it  may  relate  to  actions  or 
declarations  so  remote  in  time,  or  so  altered  in  import  and 
effect  by  intervening  changes  in  the  condition  and  circumstan- 
ces surrounding  the  party,  as  to  be  wholly  destitute  of  proba- 
tive force,  and  for  that  reason,  in  the  exercise  of  a  wise  discre- 
tion in  the  trial  court,  may  be  rejected.  Shailer  v.  Bmmtead, 
99  Mass.  130;  State  v.  Leehtnan,  2  So.  Dak.  171.  Still  such 
discretion  is  not  an  absolute  one,  but  the  exercise  of  it  wlien 
thefacts  appear,  is  subject  to  revision  in  this  court.  Com.  v.  Tre- 
fethen,  157  Mass.  180, 183.  Whether  evidence  of  such  acts,  con- 
duct or  declarations  would  have  any  practical  or  material  pro- 
bative force  must  necessarily  be  the  true  guide  in  deterniinino' 
its  admissibility.  This  is  necessarily  a  question  addressed,  in 
the  first  instance,  to  the  sound  discretion  of  the  trial  court. 
Very  considerable  evidence  had  been  produced,  consisting  of 
acts,  declarations,  and  conduct  of  the  defendant  on  the  day  of 
the  homicide,  and  for  some  time  previous,  which,  in  connec- 
tion with  other  evidence,  was  sufficient  to  require  the  question 
of  insanity  to  be  submitted  to  the  jury.  There  was  also 
evidence  tending  to  show  that  the  defendant's  condition  at 
the  time  was  the  result  of  a  protracted  fit  of  intoxication 
and  drunkenness,  caused  by  the  excessive  use  of  intoxicants; 
and  it  was  claimed  that  while  in  this  condition,  and  in  a  fit  of 
drunken  rage,  he  committed  the  offense.  One  of  the  medical 
experts  testified,  in  substance,  that  if  his  disturbed  and  excited 
condition  was  due  to  the  effects  of  drinking,  or  the  use  of 
intoxicants,  as  soon  as  the  effect  of  the  intoxicants  would  fully 
pass  away  he  would  be  restored  to  his  normal  condition.  No 
expert  testimony  was  necessary  to  establish  this  fact,  really 
within  the  common  experience  of  the  intelligent  and  disceru- 


FRENCH  V.  STATE. 


619 


mg. 


There  was  evidence  to  the  effect  that  the  defendant's 
acts,  conduct,  and  declarations  had  continued  to  be,  in  sub- 
stance, the  saina  as  im^nidiatoly  preceding  the  homicide 
until  the  end  of  the  fourth  day.  Medicines  had  been  admin- 
istered to  him  with  a  vievv  to  restore  him  to  his  normal 
condition,  but  his  condition  remained  up  to  this  time  prac- 
tically unchanged.  Under  these  circumstances,  the  ruling 
that  restricted  the  proof  of  his  acts,  conduct  and  declara- 
tions, as  bearing  upon  the  question  of  his  sanity,  was  too 
strict,  and  was  an  unreasonably  short  limitation.  We 
can  not  sanction  a  rule  that  would  arbitrarily  limit  the 
rece,ytion  of  such  evidence  in  such  cases  to  what  may  have 
occurred  within  a  ])eriod  of  four  days  after  the  commission  of 
the  offense.  The  offer  was  to  extend  this  proof  to  succeeding 
days,  and  to  show  the  continuance  of  such  condition,  but  the 
trial  court  held  that  the  proof  would  be  cumulative;  and,  for 
this  and  other  reasons  stated,  it  was  rejected.  The  effect  to 
be  given  to  such  evidence  is  for  the  jury,  and  that  the  facts 
and  circumstances  mav  be  such  as  to  detract  from  its  weight 
or  persuasive  force  is  no  ground  for  its  rejection.  It  ordina- 
rily consists  of  acts,  declarations,  or  conduct  occurring  at  dif- 
ferent times,  and  observed  by  different  persons,  but,  in  its 
effect,  is  directed  to  the  question  of  the  defendant's  sanity  at 
the  time  of  the  homicide.  We  are  not  aware  of  any  rule  in 
the  law  of  criminal  evidence  that  would  sanction  the  rejection 
of  such  testimony,  going  to  the  main  issue,  on  the  ground 
merely  that  it  is  cumulative.  The  limitation  was  not  as 
to  the  number  of  witnesses  in  respect  to  some  one  par- 
ticular act,  fact  or  declaration,  but  to  proof  of  successive 
acts,  facts  or  declarations  after  the  fourth  day,  which  might 
be  shown  by  different  witnesses,  and  all  might  tend  to  estab- 
lish the  defense.  The  right  of  the  accused  to  have  compul- 
sory process  to  compel  the  attendance  of  witnesses  in  his 
behalf  would  be  of  little  value,  if  the  court  might  arbitrarily 
refuse  to  permit  them  to  testify  on  the  ground  that  the 
testimony,  although  relevant,  would  be  cumulative,  thus 
determining  the  amount  of  evidence  the  accused  might  pro- 
duce in  his  defense.  The  ruling  of  the  court  imposed  an 
unreasonable  limitation  in  point  of  time,  and  deprived  the 
defendant  of  the  right  to  produce  relevant  evidence  that  might 
show  that,  after  a  reasonable  time  had  elapsed  for  his  restora- 


■'  ,s 

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4'     . 


I 


620 


AMERICAN  CRIMINAL  REPORTS. 


tion  to  his  normal  condition,  his  mental  condition  and  situation 
remained  unchanj^ed,  and  tliat  they  were  not,  at  the  time  of 
the  homicide,  as  claimed  by  the  prosecution,  the  result  of  pro- 
tracted and  excessive  intoxication,  ])roducing  a  fit  of  drunken 
excitement  and  fury.  The  defendant  was  thus  deprived  of 
proper  means  of  rebuttinc"  this  contention. 

The  case  of  Com.  v.  Pomeroi/,  117  Mass.  143,  was  relied  on 
as  sustaining  the  ruling  of  the  trial  court,  but  it  is  Avidely 
ditferent,  and  clearly  distinguishable,  from  the  present  case. 
In  that  case  there  had  been  no  change  of  habit,  conduct,  ornian- 
ner  either  before  or  after  the  homicide,  but  the  normal  coiuli- 
tion  of  the  accused,  a  boy  of  the  age  of  fourteen  years,  con- 
tinued throughout  without  disturbance  or  change.  "  He  ate 
with  a  hearty  appetite,  slept  soundly  and  quietly,  and,  in  conver- 
sation and  manner,  evinced  no  remorse  or  sense  of  guilt."  And, 
"in  the  evidence  relied  on  to  show  the  mental  condition  of  the 
defendant  jmor  to  the  homicide,  it  was  not  contended  that  tliere 
were  any  marked  indications  of  insanity,  nor  that,  with  the 
exception  of  an  apparent  absence  of  moral  susceptibility,  or 
want  of  moral  sense,  there  was  any  relation  or  correspoiKlcnce 
between  the  evidence  preceding  and  that  subsequent  to  the 
homicide,  which  gave  the  latter  any  s})ecial  significance."'  It 
is  projier  to  observe  that  in  that  case  it  was  said  that  "  if  the 
ruling  at  the  trial  had  been  based  solely  upon  the  length  of 
time  that  had  ela]ised,  there  would  be  ground  for  an  argument, 
assuming  the  evidence  to  have  been  in  other  resi)ects  compe- 
tent, that  the  period  of  only  eight  or  ten  days  was  too  strict  a 
limitation  of  its  admission  to  be  a  reasonable  exercise  of  the 
discretion  which  rests  with  the  court,"  and  which,  as  wc  liave 
seen,  is  the  subject  of  review.  Com.  v.  Trefet/ten,  157  Afass.  ISO. 
It  is  impossible  to  lay  down  anj'^  general  rule  upon  the  ques- 
tion of  remoteness  in  ])oint  of  time  of  such  acts,  conduct  and 
declarations,  which  will  apply  to  all  cases  alike,  beyond  tliat 
already  indicated,  namely,  that  the  acts,  conduct  or  declara- 
tions must  be  so  connected  with,  or  related  to,  or  result  from 
the  mental  condition  of  the  accused  at  the  time  the  oflfenso  was 
committed,  as  to  throw  light  upon  or  illustrate  such  condition, 
and  possess  some  material  and  practical  probative  force,  and 
when  taken  in  connection  with  other  evidence  in  the  case, 
tend  to  show  that  the  defendant  was  insane  at  the  time  of  tlio 
homicide.    The  admissibility  of  such  evidence  in  eacli  case 


FRENCH  V.  ST' ATE. 


621 


must  be  determined  with  reference  to  its  own  peculiar  facts 
and  circumstances,  and  we  think,  in  view  of  the  evidence,  that 
the  inquiry  might  have  been  properly  extended  up  to  the  time 
the  defendant  was  first  imprisoned  in  the  state  prison;  but 
facts  disclosed  by  the  evidence  may  show,  however,  that  this 
may  be  too  long  or  too  brief  a  limitafion.  If  the  defendant's 
mental  condition  continued  unchanged,  and  substantially 
as  it  was  for  several  days  before  and  for  four  days  after 
the  homicide,  this  might  warrant  a  still  further  extension 
of  the  period  of  inquiry.  In  Freeman  v.  People,  4  Denio, 
9,  evidence  of  experts  as  to  the  condition  of  the  accused  four 
months  after  the  homicide  was  held  competent  as  tending  to 
prove  that  he  was  insane  at  the  time  it  was  committed.  In 
any  event,  the  period  of  inquiry  should  be  sulficiently  extended 
to  include  the  subsequent  acts,  conduct  and  declarations  of  the 
defendant,  so  far  as  they  relate  to,  are  connected  with,  or 
grow  out  of,  or  illustrate,  or  afford  material  evidence  of 
his  mental  condition  when  the  homicide  was  committed. 

Although  not  objected  to,  one  of  the  medical  experts  testi- 
fied, in  substance,  that  '*a  man  suffering  from  the  delirium  of 
delirium  tremens  has  no  more  control  over  his  actions,  in  that 
respect,  than  a  man  suffering  from  delirium  produced  from 
any  other  cause,  but  still  he  is  sane."  It  is  proper  to 
observe  that  such  evidence  should  not  be  received.  It 
is  directly  opposed  to  the  established  rule  which  affords  im- 
munity from  the  consequoncos  of  acts  which  would  otherwise 
be  criminal.  "  Drunkenness  is  no  excuse,  but  delirium  tremens 
caused  by  drunkenness  may  be  an  excuse,  if  it  produces  such  a 
state  of  mind  as  would  otherwise  relieve  the  party  from 
responsibility."  Hcg.  v.  Davis,  14  Cox  Cr.  Cas.  564;  Terrill  v. 
State,  74  Wis.  2S8;  and  numerous  cases  cited  by  Justice  Cas- 
soday  in  Terrill  v.  State,  supra.  For  the  reasons  already  given 
the  judgment  of  the  circuit  court  must  be  reversed,  and  a  new 
trial  granted.  The  judgment  of  the  circuit  court  is  reversed, 
and  the  cause  is  remanded  to  that  court,  with  directions  to 
proceed  to  a  new  trial  of  the  special  issue  of  insanity,  and  such 
other  proceedings,  if  any,  as  shall  be  required  by  law;  and,  to 
that  end,  it  is  ordered  that  the  warden  of  the  state  prison,  in 
whose  custody  the  said  accused  William  G.  French  now  is,  do 
deliver  him  into  the  custody  of  the  sheriff  of  the  county  of 


! 

M 


I!    ,  '•■**^ 

I) 


^'1  f      ' 

hi   . 


f,  t  ■!  '  It  ' 

«^1 


_^  „ . ,  .__„ ,  paw  > 


J*         v»       Si* 


G22 


AMERICAN  CRIMINAL  REPORTS. 


Ashland,  Avho  is  required  to  keep  him  in  his  custody  until 
discharged  tlierefrom  by  law. 

Note. — To  what  extent  drnnkenness  mni/ excuse  or  palliate  a  crime.— In 
Oolliher  v.  Com.,  2  Duvall  (Ky.),  163,  it  is  declared  that  an  instruction 
to  the  jury  that  "drunkenness  can  never  be  received  as  a  ground  to  excuse 
or  palliate  a  crime,"  was,  according  to  the  doctrine  recognized  by  the 
nourt  in  Smith  v.  Com.,  1  Duvall,  2^4,  delusive  and  erroneous. 

Mr.  Justice  Robertson,  speaking  for  the  court,  says:  '"Intoxication 
may  stultify  .and  partially  demonize  its  victim,  dethroning  reason,  rousins; 
volcanic  pa:«io:is  and  either  paralyzing  or  perverting  the  will;  and,  there- 
fore, unless  brought  on  for  a  malicious  purpose,  it  may  be,  when  disabling, 
entitled  to  some  influence  on  the  questions  of  malice  and  free  volition. 

When  and  how  far  it  should  have  any  such  influence  must  depend  on  iH 
motive,  its  degree,  and  its  effect  on  the  mind  and  the  passions.  Tliis  quali- 
fied doctrine  seems  to  us  to  be  dictated  by  policy  and  humanity,  and  sanc- 
tioned by  reason  and  modern  authority,  and  was,  accordingly,  adjudged  to 
be  law  in  the  case  just  cited. " 

After  defining  murder  in  the  first  and  second  degrees,  and  malice  afore- 
thought, Mr.  Chief  Justice  Comegys,  of  the  Supreme  Court  of  Delaware, 
in  State  v.  Davis,  9  Iloust.  407,  charging  the  jury  on  the  effect  of  alcoholic 
insanity,  said : 

"  Having  disposed  of  the  subject  of  malice,  I  will  now  deliver  the  mind  of 
the  court  to  you  upon  the  subject  of  the  defense  set  up  for  the  prisoner  that 
there  could  have  been  no  malice  in  fact  in  this  case,  because  the  y)ris()ner 
was  so  under  the  influence  of  liquor  that  he  was  incapable  of  understanding 
the  nature  and  consequences  of  the  act  he  did.  We  say  to  you.  therefore, 
generally,  that  drunkenness  is  no  excuse  for  crime,  whether  the  subject  of 
it  knew  what  he  was  doing  .it  the  time  or  not.  Why  ?  Because  the  state 
of  public  intoxication  alleged  to  exist  here  is  itself  a  legal  offense  and 
is  the  act  of  the  party  setting  up  the  defense ;  and  it  is  a  rule  of 
law  that  a  party  shall  not  be  allowed  to  take  advantage  of  his  own 
wrong.  But  where  the  disease  of  mania  a  potu  has  supervenetl  from  long- 
continued  intemperance,  and  a  party  charged  with  crime  can  show  that  it 
was  committed  when  under  the  influence  of  th.atdisp.ise,  he  is  entitled  to 
be  acquitted  the  same  as  any  other  insane  man.  This  is  where  drunkenness 
is,  in  a  sense,  an  excuse  for  crime — where  mania  a  potu  has  resulted,  wliich 
is  alcoholic  insanity.  It  is  not  pretended  by  the  prisoner's  counsel  that  he 
was  in  any  sense  a  victim  of  the  insanity  known  ;i8  mania  from  drink  when 
he  did  the  fatal  act;  but  he  contends  that  the  prisoner  can  not  be  convicted 
of  murder  in  the  first  degree  if  he  was  too  drunk  at  the  time  to  know  what 
he  was  about,  because,  he  argues,  that  one  in  such  condition  is  incapable 
of  intending  or  premeditating  anything;  and  as  there  must  be  evidence  of 
Buch  premeditation  to  make  murder  of  the  first  degree,  the  prisoner  must  be 
acquitted  of  that  charge,  as  his  offense  is  only  that  of  murder  of  the  second 
degree.  We  say  to  you,  gentlemen,  that,  in  order  to  find  him  not  guilty  of 
murder  in  the  first  degree,  which  involves  a  condition  of  mind  capable  of  con- 
ceiving a  purpose,  you  must  be  satisfied,  as  there  was  no  provocation  what- 
ever for  the  prisoner's  conduct,  and  the  weapon  used  by  him  was  a  deadly 
one,  that  by  reason  of  drimkennesa  then  existing  ho  was  not  in  a  condition  to 


!a 


FRENCH  V.  STATE. 


C23 


know,  and  in  fact  did  not  know,  what  he  was  about  when  ho  shot  the  de- 
ceased. The  fact  that  tlie  prisoner  was  actuallj-  drunk  at  the  time,  if  tluit  is 
satisfactorily  proved  to  you,  will  not  reduce  tlie  olfense  from  murdt-r  of  tlie 
first  to  murder  of  tlie  second  degree,  unless  you  shoulil  be  satisfied  that  he 
was,  from  that  cause,  unable  to  know  what  he  was  about.  As  the  law 
presumes  every  one  to  bo  sane  until  the  contrary  appears,  it  devolved  in  this 
case  upon  the  prisoner  to  satisfy  your  minds  that  when  he  shot  his  victim 
he  was  too  drunk  to  know  what  he  Wiis  doing.  Has  he  done  that  ?  If  not, 
he  is  guilty  in  manner  and  form  as  he  stands  indicted.  If  he  has  done  so, 
then  lie  is  guilty  of  murder  of  the  second  degree." 

In  the  Delaware  case,  supra,  the  facts  which,  under  ordinary  circum- 
stances, would  constitute  murder  of  the  first  degree,  were  practically 
admitted,  and  the  mental  condition  of  the  defendant  at  the  time  of  the 
killing  was  the  only  question  of  serious  moment  in  controversy.  Little 
reliance  can  be  placed  on  text  books  on  this  subject,  as  the  author  can 
only  give  a  summary  of  the  decisions,  which  are  in  hopeless  conflict, 
depending  largely  on  the  view  of  the  judge  or  court  wlio  gives  expression 
to  his  broad,  humane,  or  illiberal,  cruel  nature.  Some  men  who  can  not  be 
sincere  or  humane  at  heart,  look  upon  those  who  indulge  tl/^ir  appetites 
for  liquor  tis  outcasts  and  beyond  the  pale  and  protection  of  the  law.  This 
is  uncharitable,  unchristian,  inhuman.  The  author  of  life  has  not  endowed 
all  His  creatures  with  the  same  grat  es,  talents  and  virtues,  nor  lias  He 
blessed  them  with  the  same  physical  constitution  or  moral  strength;  and 
why  should  we  not  acknowledge  that  there  are  defectives  in  the  legal  sense 
as  in  the  moral  or  physical  order  ?  If  a  person  has  been  addicted  to  the 
immoderate  use  of  intoxicants,  narcotics  or  the  like,  to  such  an  extent  that 
it  has  resulted  in  mental  derangement,  why  should  not  that  fact  be  admis- 
sible in  evidence  against  a  person  accused  of  crime — not  perhaps  to  palliate 
or  excuse  the  crime,  but  to  mitigate  and  shorten  the  duration  of  punishment 
therefor?  It  is  needless  to  say  that  if  a  person  contemplating  the  commis- 
sion of  a  ci'ime  should  take  liquor  or  drugs  for  the  purpose  of  strengthening 
his  design,  the  condition  produced  under  such  circumstances  would  but  add 
to  the  enormity  of  the  offense,  and  this  may  account  for  the  origin  of  the  rule 
"  that  voluntary  intoxication  is  no  justification  or  excuse  for  crime."  The 
following  are  among  the  latest  and  best  considered  cases  bearing  upon  the 
question :  Clmtham  v.  State,  92  Ala.  47;  Chvisman  v.  State,  54  Ark,  283; 
People  V.  Young,  102  Cal.  411;  State  v.  Johnson,  41  Conn.  584;  Garner  v. 
Stale,  28  Fla.  113;  McCook  v.  State,  91  Ga.  740;  Crosby  v.  People,  137  111. 
325;  Aszman  v.  State,  123  Ind.  347;  State  v.  Donovan,  «1  Iowa,  316;  State 
V.  O'Neil,  51  Kan.  651;  Buckhannon  v.  Com.,  86  Ky.  110;  State  v.  Coleman, 
27  La.  Ann.  651;  Com.  v.  Gilbert,  165  Mass.  45;  People  v.  Garbutt,  17  Mich. 
9;  People  v.  Wilson,  55  Mich.  506;  State  v.  Garvey,  11  Minn.  154;  State  v. 
Jfurphy,  118  Mo.  7;  State  v.  O'Reilly,  136  Mo.  597;  OGrady  v.  State,  36 
Neb.  320;  Flanigan  v.  People,  86  N.  Y.  554;  State  v.  Wilson,  104  N.  C.  808; 
Cline  V.  State,  43  Ohio  St.  332;  Com.  v.  Cleai-y,  148  Pa.  St.  29;  State  v. 
Bundy,  24  S.  C.  439;  State  v.  Morgan,  40  S.  C.  345;  Wilcox  v.  State,  94 
Tenn.  106;  Carter  v.  State,  12  Tex.  500:  Evers  v.  State,  31  Tex.  Cr.  Rep. 
318;  Ex  parte  Evers,  29  Tex.  App.  539;  State  v.  Tatro,  50  Vt.  483;  State  v. 
Robinson,  29  W.  Va.  713. 

Insanity  produced  by  the  use  of  morphine,  cocaine  and  intoxicants.— In 
the  recent  case  of  Edwards  v.  The  State,  decided  by  the  Court  of  Criminal 


5>-" 


624 


AMERICAN  CRIMINAL  REPORTS. 


Appeals  of  Texas,  43  S.  W.  R,  112,  it  appearKl  that  the  principal  dofonse 
was  that  of  insanity.  Tiie  evidence  teniled  to  i)iove  thnt  for  houu'  tiiiio— 
perha|)s  several  years— the  defendant  had  been  addicted  to  the  use  of 
morphine  and  for  the  last  eighteen  months  to  the  use  of  cocaine;  and  lie 
was  also  addicted  to  the  use  of  whisky.  Some  three  or  lour  days  prior  to 
the  assault  he  had  been  confined  to  his  home  under  the  attention  of  a  physi- 
cian; had  been  taking  morphine  and  cocaine,  ami  also  drinking  whisky. 
On  the  same  day,  prior  to  the  assault,  which  occurred  al)out  four  o'clock 
in  the  afternoon,  defendant  had  taken  four  or  five  doses  of  cocaine 
several  doses  of  morphine  and  some  whisky.  Some  time  in  the  evening 
of  the  Sijth  of  December  (the  day  of  the  assault)  h'j  left  his  honie 
going  to  a  saloon— the  prosecutor,  Tyler,  and  his  brother  and  another 
party  accompanying  him.  At  the  saloon  they  took  a  numln-r  of  drinks, 
the  party  drinking  about  a  pint  of  whisky.  The  defendant  and  prose- 
cutor immediately  thereafter  walked  out  (m  the  porch  in  front  of  the 
B;\loon,  and  the  defendant  took  hold  of  the  gallery  post,  and  iininediatelv, 
without  any  warning,  8tabl)ed  the  prosecutor  with  a  knife.  There  had 
been  no  previous  grudge  between  the  parties,  nor  did  any  quarrel  or 
altercation  precede  the  stabbing.  An  officer  immediately  came  up  and 
carried  the  defendant  to  jail.  He  asked  him  what  he  stabbed  the  hoy  for, 
and  he  said  because  he  had  been  after  him  all  morning  to  go  home.  (There 
was  no  evidence  of  this  fact.)  On  this  state  of  facts,  among  other  things, 
the  court  instructed  the  jury  as  follows  :  *'  If  the  defendant,  by  the  volun- 
tary and  recent  use  of  cocaine  and  morphine,  or  intoxicating  litjuors,  or 
all  of  them,  put  himself  in  a  condition  that  he  was  incapable  of  distinguish- 
ing between  right  and  wrong  as  to  tlie  particular  act  charged  against  liini, 
and  he  voluntarily  took  said  cocaine  and  morphine  or  intoxicating  liquors, 
knowing  that  it  would  produce  such  state  of  mind  in  him,  then,  although, 
at  the  time  of  the  commission  of  the  act,  he  might  not  have  known  what 
he  was  doing,  or  was  incapable  of  distinguishing  between  right  and  wrong 
as  to  the  particular  act  charged  against  him,  he  wcmld  not  be  excusable  for 
the  act,  if  the  act  was  otherwise  criminal.  If  the  normal  condition  of  the 
defendant  was  that  of  a  sane  person,  and  his  mind  w.as  not  diseased, 
but  was  only  temporarily  dethroned  by  the  recent  use  of  said  imdi- 
cines,  or  intoxicating  liijuors,  or  all  of  them,  and  the  defendant 
voluntarily  took  them,  knowing  at  the  time  he  diil  so  that  it  would 
dethrone  his  mind,  then  no  state  of  insanity  so  produced  would  be  a 
defense  to  crime.  If,  however,  the  defendant,  prior  to  that  time, 
had  been  affected  with  disease  or  bodily  suffering,  and  to  mre  the 
disease  or  allay  the  suffering  he  had  contracted  the  use  of  cocaine  and 
morphine  or  intoxicating  liquors,  and  that  by  reason  thereof  his  mind  had 
become,  and  was  at  the  time  of  the  commission  of  the  act  charged  against 
him,  diseased  to  the  extent  th.at  he  had  lost  control  of  his  mind,  and  did  not 
know  what  he  was  doing,  or,  if  he  did  know  what  he  wiis  doing,  if  he  did 
not  have  mind  sufficient  to  distinguish  between  right  and  wrong  as  to  tlie 
particular  act  charged  against  him,  then  his  condition  of  mind  was  such  as 
the  law  would  excuse  him  for  any  act  done  in  such  state  of  mind  so  pro- 
duced." These  charges  were  excepted  to  by  appellant  in  the  motion  for  a 
new  trial.  It  will  be  seen  from  these  charges,  says  Mr.  Justice  Henderson, 
speaking  for  the  court,  that  the  court  made  uq  discrimination  between 


w 


T'*B^- 


FRENCH  v..  STATE. 


625 


icipal  (lofonae 
sonu'  time— 

0  the  use  of 
•iiiuf;  and  lie 
days  i)rior  to 
on  f)f  a  physi- 
kinj,'  whisky. 
;  four  o'clock 
s  of  cocaine, 

1  the  evening 
ft    Ilia  home, 

and  another 
t)er  of  drinks, 
it  and  prose- 
front  of  the 
immediately, 
.'.     There  had 
ly  quarrel  or 
came  up  and 
{\  the  boy  for, 
lome.    (There 
other  things, 
by  the  volun- 
ing  li(iuors,  or 
L)f  distinguish- 
l  against  him, 
ating  liquors, 
len,  although, 
known  what 
;bt  and  wrong 
xcusable  for 
lition  of  the 
not  diseased, 
of  said  nicdi- 
defendant 
lat   it  would 
would  be  a 
that    time, 
to    <ure  the 
cocaine  and 
his  mind  had 
arged  against 
,  and  did  not 
ing,  if  he  did 
ong  as  to  the 
d  was  such  as 
mind  so  pro- 
motion for  a 
:e  Henderson, 
tion  between 


le 


insanity,  whether  produced  by  the  voluntary  recent  use  of  cocaine  and  mor- 
phine or  intoxicating  li<iuor8,  or  if  insanity  wius  produced  by  the  conibined 
use  of  all  these.  We  understand  our  statute  to  regulate  insanity  produced 
by  the  recent  voluntary  use  of  intoxicating  liciuors,  but  it  does  not  under- 
take to  prescribe  the  rule  with  reference  to  insanity  produced  by  cocaine  or 
morphine.  And,  in  our  opinion,  the  court  committed  an  error  in  instruct- 
ing the  jury  that,  if  they  believed  appellant  was  insane  from  the  voluntary 
recent  use  of  cocaine  and  morphine,  it  would  constitute  no  defense  to  the 
crime  alleged,  and  would  go  only  to  the  mitigation  of  the  penalty.  In  our 
opinion,  if  appellant  was  rendered  insane  from  the  voluntary  recent  use  of 
cocaine  and  morphine,  and  on  account  of  that  did  not  understand  the  nature 
and  quality  of  the  act  he  was  doing,  and  was  incapable  of  forming  the  intent, 
then  he  would  not  be  guilty  of  an  assault  with  intent  to  murder.  And  we 
go  further,  and  hold  that,  if  his  mind  was  rendered  insane  by  the  com- 
bined recent  use  of  cocaine  and  morphine  and  intoxicating  liquors,  and  that 
on  such  account  he  was  not  capable  of  forming  the  intent  necessaiy  to  con- 
stitute an  assault  with  intent  to  murder,  he  would  not  lie  guilty  of  said 
offense.  We  believe  it  is  a  correct  legal  principle,  where  there  is  insanity 
produced  by  other  causes  in  conjunction  with  the  recent  use  of  intoxicating 
liquor,  that  an  act  done  in  such  a  state  of  mind  can  not  be  attributed  solely 
to  the  recent  use  of  intoxicating  liquors.  See  1  ]\IcClain  Cr.  Law,  §  159; 
Roberts  v.  People,  1»  Mich.  401;  Ten-ill  v.  State,  74  Wis.  378. 
40 


r*  f 


•n^ 


^^PtfT*^ 


INDEX 


-TO- 


AMERICAN  CRIMINAL  REPORTS, 

VOLS.  1  TO  10  INCLUSIVE. 


ABANDONMENT.  page 

Of  child  by  father — what  constitutes x,      1 

Note  on  offer  to  support  children  on  mother  surrendering  them,  and 

on  divorce  suit  as  defenses x,  2,  3 

Of  wife— prior  decrees  as  evidence  to  explain  misconduct  of  wife 

relied  on  as  a  defense ix.      1 

Wife's  habits  of  intoxication  and  cruel  conduct  as  justifying  Jnis- 

band's  neglect,  questions  for  the  jury ix.      1 

Note  on  competency  of  wife  as  ivitness ix.      3 

Note  on  wife  entitled  to  care  of  child,  adulter  if  of  wife  after,  refnmd 

of  husband  to  cohabit ix.      7 

Of  family,  that  the  danger  of  their  becouiing  a  burden  to  the  pub- 
lic is  imminent  need  not  be  shown vii.      7 

Evidence  of  wife's  infidelity vii.      7 

ABATEMENT. 

Plea  must  be  certain  to  intent,  unless  reference  is  made  to  indict- 
ment   vii.  188,  203 

Requisites  to  plea  of,  to  drawing  grand  jury vii.  220 

ABDUCTION. 

Person  abducted  competent  witness  for  the  State iv.      1 

Jurisdiction  of  offense  when  person  abducted  is  taken  from  one 

State  to  another. iv.      1 

What  transcript  must  show  where  venue  of  an  indictment  or  infor- 
mation is  ordered  corrected v.      1 

Taking  female  for  prostitution  and  for  concubinage,  two  distinct 

offenses v.      1 

Evidence  necessary  to  convict vi.      1 

Denial  by  defendant  of  presence  of  female  in  his  house,  who  came 

there  voluntarily  does  not  constitute  offense vi.      1 

Actual  taking  of  uhe  person  by  some  active  agency vi.      1 

Previous  unchaste  conduct  of  female  abducted  no  defense,  .vii.  1,  ix.  7 

Inducement,  and  not  force  the  essential  element vii.  1,  ix.  7 

SeeNote vu.  6,7 

(627) 


I.; "}' 


I 


I 


*,' 


G28 


INDEX  TO  VOLS.  I  TO  X. 


1 


1 


20 
23 

23 


ABDUCTION— Con<tn«efl.  p^OE. 

Evidonce  on  a  coUatctral  qnostion,  not  ailmlssible  in  dofonse. . .  .vii.     i 

What  constitutes,  wmlor  lilinoiH  Criminal  Code viii. 

Nt'itlier  length  of  time  nor  long  continuance  necessary  to  constitute 

concubinage viii. 

See  IN8TUUCTION8. 

Believing  f<.>inalo  over  ntatutory  ago  no  dofcnao 1.  1,  ix.  7 

"  Taking  away  "  for  concubinage  whether  sexnal  intercciurso  fol- 
lows or  not,  con8titut«'H  the  offense ix.  7,  x.  3 

Subsequent  sexual  intercourse  proves  intent ix.     7 

Detaining  insane  woman ix. 

Evidence  of  prior  good  conduct  of  female  abducted  ndmisHiblo.ix. 

Evidence  that  the  abducted  said  she  went  of  her  own  accord  not 

admissible ix. 

Note  on  what  conatitnti's  the  offense  genvruUy ix.  17-19 

Note  on,  to  compel  marriage.— per aon  having  oarmtl  knowhdye  of 

female  relation ix.  22,  23 

"Purpose  of  having  illicit  sexual  intercourse"  and  "  purpose  uf 

prostitution  "  distinguished i.    28 

"  Previous  chaste  character  " i.    25 

Proving  previous  particular  acts  of  illicit  intercourse i,    28 

Consent  of  female  minor  no  defense x.      8 

Evidence  of  father  sending  abducted  daughter  n>oney  to  come 

home  on,  admissible x. 

Concubinage  "  cohabitation  without  being  lawfully  nmnied".  .x. 

State's  Attorney  referring,  in  his  argument  to  defendant  as  an 

"  infamous  lecherous  scoundrel,"  ground  for  reversal x. 

ABORTION. 

Indictment  charging  intent  to  produce  miscarriage  is  defective,  .i. 

-: —  Producing  death  of  pregnant  woiii;m  by  drugs ii. 

Proof  of  statements  of  decesised  when  visiting  defendant ii. 

Dying  declarations ii. 

At  common  law  and  by  statute,  distinguished ii. 

Note  on  evidence  necessary  to  convict ii. 

Attempt  made  any  time  during  pregnancy  constitute iii. 

Design  in  administering  drug  determines  the  crime  iii. 

Evidence  that  the  defendant  had  connived  at  the  illicit  intercourse 

of  her  husband  with  the  complaining  witness,  is  not  admissible. .  .iii. 
Declarations  made  to  physician  as  to  physical  feeluigsand  symptoms 

admissible iv. 

Drug  must  be  noxious  but  not  necessarily  effective iv. 

Objection  to  omission  of  essential  element  in  iadictment  must  be 

taken  before  jury  is  sworn iv. 

Indictment  naming  the  pregnant  woman  and  alleging  unlawful 

use  of  instrument,  describing  it,  with  intent  to  procure  miscarriage, 
is  sufficient iv. 

Evidence  of  similar  prior  act  of  defendant  admissible iv. 

Not  necessary  that  death  should  result vi. 

Dying  declarations  not  admissible vi. 

Where  indictment  alleges  abortion  by  use  of  powders,  not  error  to 


PAGE. 

ie....vii.  1 

viii.  1 

;()n»titiite 
viii.  1 

M,ix.7 

(>urHo  fol- 

ix.  7,  X.  3 

ix.     7 

ix. 

isHil)l('.ix. 
ccord  not 

ix. 

ix.  17-19 

u'li'dyf  of 


20 
23 

33 


.IX, 


00 


purpose  of 

i. 

, i. 

i. 

X. 

r  to  como 

X. 

nieil".  .X. 
int  ou  an 
X. 

fective.  .i. 

ii. 

ii. 

ii. 

ii. 

ii. 

iii. 

iii. 

ntcroourse 

lisiltle. .  .iii. 

symptoms 

iv. 

iv. 

it  must  be 
iv. 

unlawful 
iiscarriage, 

iv. 

iv. 

vi. 

vi. 

lot  error  to 


23 

28 
25 

28 
3 

3 
3 


29 


15 
15 

7 
7 


AMERICAN  CRIMINAL  REPORTS.  C29 

AUORTION— CoHfniHcr!.  p^^^j. 

fliargo  abortion  by  instrnmont  would  bo  criminal vi.  7,  ix.    28 

. Note  on  death  h/f  abortion,  murder  at  common  law,  quaere vi.    14 

Malice  implied  from  use  of  druns  or  instruments vi.    Ifl 

- —  Kote  on  dying  declarations  as  evidence vii.  20-23 

Woman  not  preKnant,  but  believing  lierself  to  bo,  conrtpiring  with 

others  to  produce  abortion  on  herself vjjj       j 

Note  on  attempt  to  commit  an  impossible  crime viii.  4  5 

- —  Jurisdiction  of  defendant  where  he  procuri*  drug  in  one  State  and 

sends  it  to  the  woman  in  another jx.    28 

■ —  Note  on  Accomplice ix.    49 

Indictment  cluvrginK  publication  of  notice  wliero  advice  could  be 

obtained x,      9 

ABSENT  WITNESS. 

Testimony  given  on  first  trial  of  a  criminal  case,  can  only  be  proved 
on  a  second  trial,  when  witness  is  dead ij.  ogg 

ACCESSORY. 

Aiding  to  conceal  a  dead  body y.  6 

One  converting  to  his  own  use  money  fraudulently  received v.  10 

Instigator  of  a  crime  an  accessory  before  the  fact y,  10 

No  accessories  in  misdemeanors y,  10 

Nature  of  punishment  fixes  grade  of  ofTense y.  10 

Challenge  to  juror  remotely  interested  with  accessory  sustained,  v.  20 

Before  the  fact,  equally  guilty  with  principal v.  20 

Any  person  advising,  encouraging,  aiding  or  abetting  commission 

of  a  felony  is  as  guilty  as  though  he  commits  the  same vi.  570 

ACCOMPLICE. 

Purchasing   stolen  goods   from   thief  under   instructions   from 

officer i.  178 

Conviction  can  not  be  had  on  uncorroborated  testimony  of  accom- 
plice  i.  194 

Credit  of  ajcconiplice's  testimony  a  question  for  the  jury i.  618 

Volunteering  as  a  witness  must  testify  fully i.  618 

Evidence  received  with  caution iii.  326 

Corroboration  of  testimony  of  an  accomplice v.    84 

A  female  with  whom  defendant  had  incestuous  intercoui-se,  if  she 

united  with  him  voluntarily  and  knowingly  in  the  commission  of  the 

offense  is  an  accomplice v.  293 

Sufficiency  of  corroborative  evidence  a  question  for  the  jury.  .vii.    22 

Note  on  the  nature  of  testimony  corroborative  of  accomplice,  .vii.    24 

Corroboration  as  to  material  fact  not  connecting  defendant  with 

offense vii.    25 

Note  on  who  is  an  accomplice vii.  30,  31,  x.    13 

Instructions  as  to  co-liability  of  accomplice vii.    25 

One  who  admits  participation  in  adultery  is  an  accomplice x.    13 

May  be  tried  for  murder,  although  principal  was  convicted  only  of 

manslaughter viii.     19 

Declarations  of,  made  in  the  absence  of  principal,  admissible 

when viii.    19 


!^R! 


% 


630 


INDEX  TO  VOLS.  I  TO  X. 


1 ,1  -- 1    '  i?* 


ADMISSIONS  ANC  CONFESSIONS.  paoe. 

Statements  made  by  prisoner  to  one  with  whom  he  had  been  living 

and  to  the  prosecutor  not  voluntarj'  confessions j.  \i^ 

Admissions  made  upon  assurance  by  officer  of  immunity  from 

punishment,  not  admissible j.  \i\ 

Court  should  exclude  confession,  admitted  without  objection,  if  it 

is  inadmissible i.  171 

Confessions  by  prisoner,  made  upon  sheriff  saying  it  would  be  bet- 
ter for  him  to  disclose  everything,  not  admissible i.  173 

-^—  Only  voluntary  confessions  admissible i.  179 

Officer  forcing  prisoner  to  fit  his  foot  into  a  fresh  track i,  1^3 

Statements  made  to  a  fellow  prisoner  admissible j.  igo 

Silence  under  accusations  not  always  to  be  construed  aa  a  con- 
fession of  guilt i.  29,  V.  IJGO 

Note  on  silence  as  an  implied  admission i,    32 

Where  prosecution  proves  declarations  of  prisoner  by  witness  who 

did  not  hear  all  that  prisoner  said,  defendant  can  prove  the  whole 

conversation , i.  272,  29;i.  3i^ 

Statements  made  by  defendant  aa  to  fact  circumstantially  material 

to  the  issue  admissible  against  him i.  315 

Weight  of  admissions  .   i.  324 

Confessions  under  promise  or  threats  incompetent ii.  67,  v.  107 

Court  must  determine  from  circumstances  whether  confession  was 

voluntary iii.  2r)6 

Corpus  delicti  can  not  be  established  solely  by  defendant's  confes- 
sion  iii.  256,  v.    43 

Promise  to  defendant  of  permission  to  associate  with  other  prisoners 

is  an  inducement c iii.  165 

Admissions  by  a  weak  minded  person,  after  being  told  it  was  best 

for  him  to  own  up,  given  a  drink,  handcuffed  and  taken  to  a  lawyer's 

office,  were  not  voluntary  and  could  not  be  used  against  him iii.    70 

Defendant  entitled  to  give  evidence  that  confessions  sought  to  be 

introduced  against  him  were  obtained  by  improiwr  induienients.  .iii.    81 

Made  in  ordinary  or  random  conversations  not  admissible iv.    25 

Telling  defendant  punishment  would  be  lighter  if  she  told  the 

whole  story,  an  improper  inducement iv.  104 

Reversing  decision  of  trial  court  when  no  conflict  of  testimony  as 

to  inducement iv.  104 

Weight  attached  to iv.  417 

Declarations  of  injured  party  respecting  his  injuries iv.    49 

Made  to  another  out  of  court  without  proof  aliunde  of  the  corpus 

delicti,  will  not  justify  conviction v.  43,  303 

Corroborated  by  circumstances  justify  conviction v.  443 

Jury  present,  a  preliminary  examination  as  to  admissibility  of,  not 

error v.  443 

Verification  of  accused's  statement  of  facts  and  circumstances 

which  teod  to  fix  his  guilt  renders  his  confession  admissible  against 

him V.  477 

——  Of  one  of  two  defendants  admissible  against  both vi.    80 

—  When  induced  by  any  words  spoken  to  or  in  the  hearing  of  the 


AMERICAN  CRimNAL  REPORTS,  631 

ADMISSIONS  AND  CONFESSIONS-Conf^nwd.  page. 
defendant  tending  to  generate  hope  or  fear  on  his  part  are  inadmis- 
sible  vi.  206 

Acts  and  declarations  of  a  conspirator  after  the  commission  of  the 

offense   admissible   against,    him  but   not  against  his  co-conspira- 
tors   vi.  570 

. Right  of  defendant  to  show  that  subsequent  to  making  the  state- 
ment introduced,  he  made  a  different  one  and  gave  reasons  for  mak- 
ing former vii.  462 

ADULTERATION. 

The  Oleomargarine  Act  of  the  Missouri  Legislature  not  in  violation 
of  the  U.  S.  Constitution iv.    16 

Pennsylvannia  Act  prohibiting  adulteration  of  dairy  products  con- 
stitutional  vii.    33 

Note  on  adulteration  of  dairy  products vii.    55 

ADULTERY. 

Proof  of  marriage i.  34  vi.  17 

Indictment  failing  to  .illege  woman  was  not  respondent's  wife.  .i.  34 

Evidence  that  respondent  acted  in  good  faith  under  advice  of  a 

Justice  of  the  Peace,  not  admissible i.  43 

Consent  of  the  woman  is  not  indispensable  to  constitute,  as  against 

the   man iv.  25 

Husband  or  wife  instituting  prosecution iv.  25 

Proving  adulterous  acts  other  than  the  one  charged iv.  25 

What  constitutes  cohabiting  together  as  husband  and  wife. . .  iv.  80 

Alleging  offense  in  language  of  statute vi.  17 

Competency  of  wife  as  a  witness  against  husband vi.  17 

Knowledge  of  former  marriage vii.  58 

Note  on  eauentials  in  indictment vii.  61  x.  19,  20 

Hecorded  certificate  as  proof  of  marriage viii.  14 

Proof  of  cohabitation viii.  14 

Presumption  of  continuance  of  marriage  status viii.  14 

Participator  in,  is  an  accomplice x.  13 

Uncorroborated  testimony  of  an  accomplice  will  not  establish 

offense x.  13 

AFFRAY. 

Evidence  to  establish  self-defense viii.    86 

^'ote  on  affray — loilaiffui  assembly,  riot— rout viii.  39,    40 

Right  of  three  of  four  persons  on  trial  for,  to  impeach  the  fourth 

who  was  their  antagonist x.    20 

Evidence  admissible  for  impeachment,  incompetent  to  prove  mo- 
tive  X.    20 

AIDING  AND  ABETTING. 

One  to  feloniously  wound  another x.    28 

Where  one  of  two  defendants  is  convicted  of  a  misdemeanor,  the 

other  may  be  convicted  of  aiding  and  abetting  him x,    23 

AIDING  PRISONER  TO  ESCAPE. 

Allegations  required  iu  information  charging  ono  %vith vi.    81 


63a 


INDEX  TO  VOLS.  I  TO  X. 


=1    i' 


f 


\f 


ALIBI.  PAGE. 

Evidence  of,  is  evidence  of  a  suspicious  character,  error i.  015 

Evidence  tending  to  prove,  entitled  same  consideration  as  iHiy 

other  evidence iii.  295 

Evidence  supporting  alibi,  sufficient  to  cause  I'liry  to  doubt  defend- 
ant's guilt,  justifies  acquittal iv.    33 

Burden  of  proof  in vi.  209 

Contradicting  defendant vi.    85 

Evidence  and  effect  of  proving  an, vii.    61 

Distance  of  defendant  from  scene  of  crime  as  an  alilii     vii.    64 

Testimony  competent  to  prove  an  alibi viii.  434 

False  evidence  of,  as  a  circumstance  against  defendant viii.  207 

AMENDMENT. 

Power  of  coui-t  to  permit  amendment  of  indictment i.  393 

APPEAL  AND  ERROR. 

Alternative  error i.  228 

Error  to  be  available  must  be  injurious i.  324 

Erroneous  instruction  as  to  murder  in  the  second  dogre(^  dcxvs  not 

prejudice  respondent  found  guilty  of  mui'der  in  the  first  degree i.  2".l 

Formal  error  cured  by  verdict i.  283 

Improper  remark  of  court  in  presence  of  jury  a.s  error i.  3.VJ,  TmO 

Error  in  request  to  charge i.  TiO? 

Error  must  l>e  affirmatively  shown iii.  379 

Writ  of  error  in  behalf  of  State iv.    30 

Right    of   defendant   to    appeal    from  judgment    of  nuinieipal 

court iv.  446 

Appeal  of  escaped  convict iv.  477 

Writ  of    error    Territorial    Supreme    Court    to   U.   S.   Siipn'ine 

Court i  V. 

Error  in  exclusion  of  evidence  will  not  always  reverse iv. 

Refusal  to  repeat  ruling  not  error iv. 

No  appeal  from  order  denying  defendant  new  trial  on  plea  of  for- 
mer conviction v, 

On  appeal  presumption  in  favor  of  vaHdity  of  indictment  pre- 
vails  


VI. 

Failure  to  give  instruction  not  asked  for  not  error vi. 

Instruction  that  a  conviction  for  certain  degrees  of  manslaughter 

was  not  justifiable,  not  «'rror vi. 

Admission  of  irrelevant  testimony  in  a  criminal  case,  reversil)lo 

error vii. 

Prosecuting  attorney  commenting  on  failure  of  defendant  to  tes- 
tify  vii. 

Failure  of  court  to  enter  reason  for  discharge  of  disagreeing  jury 

upon  court  docket  not  error • vii. 

Irregularities  by  jury  must  be  such  as  show  prejudice  against  the 

prisoner vii. 

Setting  aside  verdict  in  criminal  case  because  of  tlie  hisufiiciency 

of  the  evidence vii. 

Remarks  of  counsel  as  grounds  for  nt- w  trial vii. 

Amended  transcript  of  record  on  appeal vii. 


494 
403 
410 

486 

556 

88 

418 
58 

106 
11 

254 

334 
345 

502 


AMERICAN  CRIMINAL  REPORTS. 


633 


PAOE. 

r i.  615 

ii>n  as  iWiy 

iii.  295 

ibt  defi-nd- 

iv.  33 

vi.  209 

vi.  85 

vii.  61 

vii.  64 

viii.  434 

viii.  207 

1.  396 

i.  22S 

i.  324 

ei^  does  not 

-■Sree i.  251 

i.  2S3 

i.  3")i),  (mO 

i.  no? 

iii.  379 

iv.  30 

iminifiii.il 

iv.  446 

iv.  477 

Suprctuo 

iv.  494 

iv.  403 

iv.  410 

)lea  of  for- 
v.  488 

tiiient  prc- 

vi.  556 

vi.  88 

nslaughter 
vi.  418 

reversible 

vii.  58 

unt  to  los- 
vii.  100 

ecing  jury 
vii.  11 

.gainst  the 
vii.  254 

jutlicient  y 

vii.  334 

vii.  345 

vii.  502 


APPEAL  AND  'EllUOIL— Continued.  p^Qj, 

. — -  Conviction  for  an  infamous  crime  not  reviewable  in  United  States 

Circuit  Court  of  Appeals i.x.  436 

Discharge  on  habeas  corpus  reviewable  on  appeal ix.  711 

Contempt  proceedings  reviewable  on  error ix.  221 

. Error  in  instruction  not  reversible  when  evidence  of  defendant's 

guilt  is  undisputed Ix,  256 

ARRAIGNMENT  AND  PLEA. 

That  respondent  was  arraigned  and  pleaded  must  affirmatively 

appear  on  record i.  602,  604,  606,  iii.  9 

.. —  Before  Justice  renders  same  unnecessary  in  Appellate  Court i.  605 

. Entering  plea  nunc  pro  tunc  after  verdict 1.  606 

.  When  omission  of,  will  not  avail  respondent 1.  567 

. When  formal  arraignment  not  necessary iji.  322 

Plea  to  be  made  by  whom y,    20 

Plea  of  former  conviction y.  4£6 

ARREST. 

Establishing  guilt  of  suspected  person   not   necessary  to   justify 

arrest  without  warrant i.    gO 

Resisting  illegal  arrest i .  287 

- —  Officer  permitting  prisoner  arrested  on  void  warrant  to  escape  not 

liable  to  prosecution ii.  465 

Arrest  for  felony  without  sufficient  reasons  of  belief iii.    26 

Right  of  resistance  to  illegal  arrest iii.     n 

- —  Oilicer  attempting  an  arrest  on  a  warrant  for  a  misdemeanor  has 

no  right  to  kill  accused  to  prevent  his  escape iii    15 

Killing  officer  attempting  arrest,  not  knowing  his  official  char- 
actor,  is  manslaugliter iv.    36 

By  private  person iv.36,  91 

579 
36 
36 
41 


41 
64 


Of  defendant's  witness  in  presence  of  jury  is  error iv. 

By  city  marshal  without  warrant v. 

For  carrying  concealed  weapons v. 

Of  offender  openly  engaged  in  breaking  the  law v. 

Officer  making,  not  always  bound  to  advise  party  of  his  purpose 

and  position v. 

Bystander  assisting  officer  in  making  wrongful  arrest vii. 

Taking  and  keeping  chattels    found  in  possession  of  party  ar- 
rested  vii.    66 

Without  warrant  for  misdemeanor viii    41 

For  breach  of  the  peace  committed  in  presence  of  officer ix.    49 

Note  on  civil  liability  of  officer  making  arrest  through  deputy 

who  had  not  tcarrant  in  his  possession ix.  56-5S 

Note  on  arrest  on  susjncion — identification  from  photographic.  59-60 

Note  on  wrongful ix.  60-63 

Persons  orally  deputized  to  assist  sheriff  in  making ix.  570 

One  other  than  an  oiHcor  making,  without  warrant ix.  570 

ARREST  OF  JUDOMENT. 

Failure    of    record   to    show    indictment   returned    into    open 

court vi.    51 

Motion  in,  after  verdict vi.  897 


.It; 


634 


INDEX  TO  VOLS.  I  TO  X 


S,:  ,'  ■■■iti.C'i 


ARSON.  PAGE. 

Soliciting  another  to  set  fire  to  a  building j  gj 

Burning  jail  to  escape j^  gg 

Burning  insured  property  i_  gj 

Evidence  that  defendant  prior  to  the  burning  tried  to  induce 

another  to  burn  the  building j_  gj 

Burning  and  procuring  to  be  burned  different  offenses i.  g^ 

Bu:  ning  one's  own  house  not, iy,  39 

Sho  ving  motive iy.  33 

"  A(  joining"  and  "adjacent  to"  distinguished iv.  42 

At  c  )mmon  law  and  under  the  statute jy.  43 

Defendant  can  not  be  convicted  on  confessions  alone y.  43 

Competency  of  the  evidence  for  the  court — sufficiency  for  jury..v,  43 

The  corpus  delicti  in,  is  that  the  burning  was  the  willful  act  of  one 

criminally  responsible y,  43 

Footprints  as  evidence  in v.  43,  ix,  C3 

Threats  of  defendant  admissiljle  as  evidence y,  43 

Ill  feeling  as  bearing  upon  motive y.  43 

Over  valuing  insured  property  tending  to  show  motive y.  49 

Defendant  entitled  to  explain  testimony  tending  to  show  motive,  v.  48 

Circumstantial  alone  will  not  warrant  conviction y,  52 

IVIalice  need  not  be  charged  in  indictmc  nt  for yi.  33 

Burning  insured  building  at  request  of  owner vH,  74 

iVo/e  on  huHhand  burning  u'ife's  house vii.  77-79,  x.  37,  38 

Evidence  showing  hostility  of  defendant  to  owner  of  burned  build- 
ing admissible .....vii.  202 

Burning  materials  of  a  building  after  tearing  it  down  not, viii.  49 

Evidence  of  threats  by  one  other  than  defendant  to  burn  the  build- 
ing, inadmissible ix.  63 

Building  burned  on  defendant's  l.ind  wliich  he  could  not  sell  owing 

to  occupant's  refusal  to  leave ix.  70 

Defendant  can  not   take  advantage  of  irregularity  in  sentence 

favorable  to  him ix.  70 

Reasonable  doubt  and  circumstantial  evidence ix.  62 

Note  on  burning  vacant  house ix.  70 

Note  on  oivnership  and  occupancy  of  house  buriicd ix.  70 

Confession  of  accused  expecting  to  die  from  poison x.  25 

Accused's  pi  ■  vious  efforts  to  sell  property x.  25 

Is  an  offense  against  the  habitation x.  30 

Allegation  of  ownership  in  indictment x.  31 

Husband  testifying  against  wife  charged  with  burning  comnuniity 

property x.  31 

Note  on  special  or  qualified  oiimership  of  property  burned x.  35,  36 

Note  on  allegation  and  proof  of  possession  and  ownership. . .  .x.  30,  37 

ASSAULT. 

Pointing  unloaded  pistol  at  another  not, i.  46,  vi.  37 , 

Must  be  actual  intent  to  do  physical  injury i.  46 

Fear  of  prosecutor  can  not  constitute  threatening  act  an i.  46 

Aggravated,  of  teacher  upon  pupil iv.  49  x.  40,  41 

Indictment  for  a-^aaulting  officer  with  deadly  weapon , . . .  .vi.  43 


-p>#^i^f 


AMERICAN  CRIMINAL  REPORTS.  635 

ASSAULT— Co?i/in«e<i.  p^qe_ 

Amending  defective  count  in  indictment vi.    41 

. Retaking  property  from  one  who  wronj;fully  took  it viii.  45,  x.    45 

Pointing  a  gun  at  another  withm  shooting  distance x.    88 

- —  Ao«iuittal  of  with  intent  to  inflict  great  bodily  injury  by  a  find- 
ing of  guilty  of  simple x.    41 

Defined x.    41 

Confinement  in  liouse  of  correction  at  hard  labor  as  punishment 

for X.    45 

/  SSAULT-INDECENT. 

Takmg  indecent  liberties  with  female  child viii.  381 

Indictment— verdict viii,  381 

ASSAULT  AND  BATTERY. 

Ceremony  of  expulsioi?  by  a  society  may  constitute i.  50 

Recaption  of  stolen  property  by  breach  of  the  peace 1.  57 

Parties  fighting  by  mutual  agreement i.  59 

. Former  conviction  a  bar i.  55 

Striking  and  wounding  with  blacksmith's  tongs  is i.  6") 

. Superintendent  of  poor  house  using  physical  coercion ii.  no 

Sufficiency  of  verdict  under  information  charging ii.  C31 

Inflictmg  bodily  injury  not  mcessary  for  commission  of iii.  9 

Repelling  threatened  trespass  by  force iii.  g 

On  two  or  more  at  same  time iii.  154 

Pointing  cocked  revolver  at  anotlier v.  54 

Pointing  loaded  weapon  at  trespasser v.  54 

Positive  evidence  of  felonious  intent  not  reijuired  in  prosecution 

for vi.  51 

ASSAULT  WITH  DEADLY  WEAPON. 

Deadly  weapon  defined.   viii.    53 

Reasonable  apprehension  of  great  bodily  injury  does  not  always 

justify viii.    53 

Burden  of  proof viii.    53 

ASSAULT  WITH  INTENT  TO  KILL. 

Intoxication  as  a  defense iii.  160,  v.    57 

Note  on  effect  of  drunkennesn iii,  16'J,  163 

Instruction  as  to  manslaughter v.    57 

Verdict  that  defendant  was  guilty  of.  as  cliargcnl  in  tlic  informa- 
tion, and  also  that  he  acted  under  j."-  at  provocation,  and  recom- 
mended him  to  niercy  of  court,  construed i.  244 

Sufficiency  of  evidence  to  convict  of i.  240 

Every  ingr;^dient  of  murder,  except  death,  must  be  present  to  jus- 
tify conviction i.  246 

Intending  to  kill  one  and  accidentally  killing  another  not  an. .  .i.  249 

Intent  essential i.  249,  iii,      6 

Indictment  for,  will    sustain    verdict    of   assault    with   deadly 

wi 'aiK)n i.  539 

Verdict  in  absence  of  accused vii.    80 

Only  a  misdemeanor  at  common  law vii.    80 


I 


686  INDEX  TO  VOLS.  I  TO  X. 

ASSAULT  WITH  INTENT  TO  KILL-Contlnned.  p^OE. 
Evidence  of  tlireata  or  flight  of  nnotlier,  as  a  defense  not  admis- 
sible  vii.    84 

Committod  in  abating  nuisance  by  force jx.    73 

Plea  of  self-defense  not  available,  when jx.    73 

——  Administering  poison ix,    go 

Evidence  of  general  reputation  of  accused  for  peace ix.    80 

Note  on  threatening  jiermn  with  deadly  weapon ix.  80,  82 

Indictment  against  accessory x.    46 

Conviction  of  principal/jruMU  facie  evidence  of  guilt  of  accessoiy.x.    4(J 

Degree  of  proof  required x.    46 

Note  on  aufflciency  of  indictment x.  56,  57 

Evidence  admissible  t(j  impair  credibility  of  witness  who   had 

informed  person  assaulted  that  she  heard  accused  and  another  con- 
spiring to  rob  him x.    57 

Indictment  charging,  and  assault  with  intent  to  rob x.    ')"! 

Note  on  aelf-defense x.    66 

ASSAULT  WITH  INTENT  TO  COMMIT  RAPE. 

Suf^'ciency  of  evidence  to  justify  conviction j.  036 

Indictment  must  state  act  was  done   "unlawfully"  and   feloni- 
ously   i.  6|;$ 

Female  must  be  under  statutory  age i,  (i|;{ 

Actual  or  attempted  use  of  foroe  must  be  proven vi.    4'j 

Prosecutrix  questioned   as  to   previous  sexual   intercourse  with 

accused vii,    (t7 

Note  on  attempt  to  rape  by  fraud vii.  Hid 

By  Iniy  under  fourteen ix,  144 

Jury  reading  provision  of  code  relating  to  mental  capacity ix.  444 

Husband  constraining  another  to  ravish  his  wife ix.  4 18 

Female  under  age  of  consent ix,  441) 

Female  under  age  can  not  consi'iit x.    67 

Not  necess.ary  to  show  accused  knew  female  wjus  under  age. . .  .x.    07 

One  committhig  a  crime  is  criminally  responsible  fir  tlie  conse- 
quences  X.    67 

ATTEMPT. 

A  bare  solicitation  to  commit  an  offense  is  an.  when ii.  HOO 

Solicitation  lo  commit  adulti'iy  is  not  an,  to  commit  the  crime,  ix.  661 

ATTEMPT  TO  COMMIT  ilUU(JLARY. 

Sufticiency  of  indictment v.  61,  vi.    54 

Intent  inferiad  from  breaking  and  opening  windows v.    61 

ATTEMPT  TO  ESCAPE  FROM  PRISON. 

SutHciency  of  indictment v.    62 

ATTEMPT  TO  EXTORT. 

Accusing  another  of  crime  with  intent  to  extort  money ix,    82 

Evidence  th.at  accused  was  acting  under  instructions  of  a  sociity 

for  prevention  of  crime  admissible ix.    82 

ATTEMPT  TO  COMMIT  ABORTION. 

One  may  be  convicted  of,  though  woman  was  not  pregnant. .   .ix.    82 


nant..   .ix.    82 


AMERICAN  CRIMINAL  REPORTS.  687 

ATTEMPT  TO  COMMIT  LARCENY.  p^qe. 

Thrusting  hand  into  empty  pocket  of  another,  is  an ix.    83 

ATTEMPT  TO  COMMIT  RAPE. 

Word  rape  may  not  be  used  in  information y.    66 

Not  necessary  to  use  the  exact  words  of  statute  defining  offense  in 

a  criminal  information y^    gg 

ATTORNEY  AND  CLIENT. 

Authority  of  client  to  consent  to  the  use  of  client's  money i,  600 

. What  commimications  between,  are  privileged v.  140  vii,  11 

AUTREFOIS  ACQUIT-AUTREFOIS  CONVICT. 

Plea  of  autrefois  convict  bad,  whf  n i.  543 

Identity  of  offenses  charged  necessary  to  support  pleas  of iv.  296 

Former  acquittal  as  a  bar  to  second  prosecution iv.  338 

Autrefois  acquit,  when  no  bar  in  burglary iv.  80 

Former  plea  in  bar  in  arson,  when v.  71 

Acts  made  offenses  under  State  and  municipal  law v.  80 

Effect  of  plea  of  autrefois  convict  after  demurrer v.  80 

BAIL. 

Allowable  after  verdict,  vvhen vi.    55 

Excessive,  void vi.    61 

Xote  OH  taking  recognizances vi.  64,    65 

In  criminal  cases  pending  proceedings  in  error ix.    01 

- —  Supersedeas  gi-anted  by  Justice  of  Supreme  Court  independent  of 

any  rule  of  court ix.    91 

Judge  declining  to  exercise  his  discretion  in  matter  of,  mandamus 

will  lie  to  compel  him  to  act ix.    91 

After  indictment ix.  463 

. Note  on  right  to  bail ix.  485,  487 

BANKS  AND  BANKING. 

Officer  of  bank  charged  with  knowingly  accepting  deposits  when 

bank  is  insolvent ix.  108 

Opinion,  evidence,  as  to  solvency  or  insolvency  of  bank ix.  108 

Using  de|Kisits ix.  108 

(^apital  stock  mid  surplus,  not  liabilities,  showing  insolvency.,  .ix.  108 

Presumptiun  of  bank  officers'  knowledge  of  condition  of  bank. .  ix.  108 

Misappropriaticm  of  NaUvinul  Bank  notes ix.  668 

Not  cliiss  legislation ix.  284 

r»)wer  of  legislature  to  de<'laro  what  shall  be  evidence  of  knowl- 
edge of  bank's  insolvency ix,  284 

Indictment  of  bank  otticer  for  n<ceiving  deposits,  believing  bank 

is  insolvent,  must  allege  uisolvency x.    71 

State  Court   has   jurisdiction  of   indictment  against  officer  of 

National  Bank x.    71 

On  trial  of  hanker  for  receiving  deiwait  knowing  insolvency  of 

bank  who  is  nv>t  competent  juror x.    75 

- —  Manager  of  insolvent  bank  guilty  in  reHf^ect  to  deposit  received  by 
toiler X.    75 


T'l^f-^ 

V  J 

638 


INDEX  TO  VOLS.  I  TO  X. 


S&LMA 


im. 


■•■v!  »■>'-■,.-»« 


It/ 1  ,< 


i 


DANKS  AND  BANKING— CoH/m«cd.  pvoE. 

Cause  of  insolvency  immiitoria! x.    75 

Note  on  validity  of  statute  for  protection  of  depositors x.    i^d-tjo 

BASTARDY. 

Civil  and  criminal  proceeding j,    (j^ 

Imprisonment  of  putative  fatlier i.  (j",  vi.    70 

liescmblance  of  cliild  to  a  third  person j.    gfj 

Prei)onderance  of  evidence  justities  conviction j,    rjQ 

Requiring  bond  for  payment  of  judgment i.  70,  vi.    70 

Sufficiency  of  evidence i,    7^ 

Objection  tliat  it  was  not  sliown  child  was  not  lK)rn  in  the  State 

not  available  w^hen  made  for  the  first  time  in  Supreme  Court ij.  179 

Appeal  from  County  to  Circuit  Court jj.  17^ 

Proceedings  in,  not  abated  by  death  of  child ii.  i7jj 

Prosecutrix  may  be  a  non-resi<lent ij.  177 

Non-resident  i)laintiff  not  recpiired  to  give  bond  for  costs ii.  177 

Paternity  must  be  established  beyond  reasonable  doubt ii,  (joo 

Prosecutrix  having  had  sexual  intercourse  with  two  men  so  nearly 

the  date  of  conception  she  can  not  tell  from  which  act  coneeptidii 

resulted ii.  606 

Time  and  place  of  offense  nuist  be  i»roven  lus  specified iii.    21 

Judgment  providing  for  maintenance  of  child  by  father  iii.  21,  ix.  117 

Putative  father's  refusal  to  give  bond  the  gist  of  the  offense. . ,  iv.    05 

Uncliastity  of  wonuin  as  a  defense v.  8S,  viii.    87 

Showing  complainant's  motive  for  charging  i)aternity  upon  defend- 
ant  V.     88 

Purjwse  of  proceeding  in vi.    70 

Exhibiting  child  to  jury vi.    (15 

Note  on  u'ho  and  who  are  not  bastards  in  law vi.  7.},    70 

Venue ix.  117 

Judgment  in  discretion  of  court ix.  1 17 

Note  on  nature  of  jtroccvdiiiy,  jurisdiction,  intercourse  icith  others 

than  defendant,  and  release  by  infant  complainant ix.  121,  123 

Instruction  as  to  period  of  gestation x.    90 

Prosecutrix  having  intercoui-se  with  another  than  accused  at  or 

about  the  time  child  was  begotten x.    00 

BETTING  ON  ELECTION. 

Is  not  gaming i.  233 

BIGAMY. 

Sufficiency  of  evidence  of  marriage i.    74 

Bigamous  marriage  is  void i.    73 

Indictment  for.  bad  on  demurrer  wlien ii.  163 

Honest  belief  of  having  been  lawfully  divorced  no  defense ii.  163 

Bona  fide  belief  of  death  of  first  Jiusband  no  defense ii.  608 

Man  marrying  again  where  wife  obtained  divorce  for  his  miscon- 
duct  ii.  613 

Actual  cohabitation ii.    13 

Proper  ordination  of  minister  solemnizing  marriage  rites  not  nec- 
essary  ii.    13 


AMERICAN  CRIMINAL   REPORTa  039 

BIGAMY— Continued.  p^f,p 

Identity  anil  not  names  of  persons  must  be  proven \i    13 

Indictment  for,  drawn  in  lanKimge  of  statute  sullicient iv.    68 

Competent  evidence  as  to  marriage jy     gy 

Statute  depriving  bigamist  of  tljo  riglit  of  francliiso  or  to  hold 

office  constitutional viii.    89 

Religious  belief viii.    89 

Reasonable  belief  of  death  of  firdt  husband  a  good  defense viii.    59 

Right  of  territorial  legislature  to  enact  law  against,  although  Con- 
gress had  also  enacted  a  law  against  the  same  otfiiise ix.  128 

. One  marrying  a  girl  under  age  of  consent  can  not  plead  such  fact 

to  charge  of ix.  139 

Common  law  marriage  a  basis  for  prosecution  for jx.  139 

. Decree  of  divorce  appealed  from  inadmissible  in  defense ix.  139 

. Note  on  prior  marriage  as  part  of  corpiia  ihlicti ix.  144 

-  Note  on  minor  marrying  without  consent  of  parents ix.  144 

BILL  OP  EXCEPTIONS. 

Scattering  rulings  to  be  reviewed  through  a  long  record iii.  260 

■  Need  not  show  what  party  expected  to  prove  by  witness  reje(;ted 

as  incompetent iii.  351 

Embodying  instructions  in iv.  2G4 

Supreme  Court  revising  refusal  of  charges  asked,  not  shown  in  bill 

of  exceptions v.    43 

Assignment  of    error  that    entire  charge    is    erroneous    is  too 

general v.  443 

Formal  caption  not  essential v.  469 

After  judge  has  signed  he  can  not  by  subseiiuent  certificate  change 

brief  of  evidence v.  553 

Affidavits  must  be  certified  to  Supreme  Court  by  a v.  4'.)!),  ix.  460 

Exceptions  must  be  taken  at  the  time,  and  made  part  of  the.  vi.  33,  76 

Note  on  requisites  of vi.    80 

Motion  for  new  trial  must  be  nuule  part  of vi.    76 

Identification  of ix.  108 

Record  of  proceeding— signature  by  judge x.    93 

BILL  OF  PARTICULARS. 

Efifect  of  a vii,  137 

BLACKMAIL. 

Sufficiency  of  indictment ii.    18 

Inflicting  incretised  punishment  for,  on  account  of  other  crimes  iii.    23 

What  constitutes  threat  to  extort vii.  101 

Parol  evidence  to  explain  threatening  letter viii.  110 

Guilt  of  person  threatened  immaterial viii.  110 

BODY  STEALINO. 

Exhumation  by  public  authorities  does  not  constitute vii.  103 

Irregularities  of  coroner  do  not  alfect  legality  of  his  acts vii.  103 

Proving  motive  of  the  crime viii.  100 

Refusal  to  grant  new  trial  where  lawful  authority  was  not  shown, 

not  error viii.  100 


4 


I 

t 

4l 


Kl 


\m 


f.40  INDEX  TO  VOLS.  I  TO  X. 

BOYCOTTING.  PAfiE. 

Wlu'tlier  notice  of  boycott  bore  such  meaning  as  allcRoil  in  imlict- 

mont  tpicHtitm  for  jury y,    % 

Ndle  on  Imycottinij  as  a  cotinpiracy y[i  jr^ 

BKKACH  OF  THE  PEACE. 

Any  violation  of  inibiio  order  or  decorum  is  a ix.    73 

BIIEAKINO  AND  ENTERING  KAILKOADCAR. 

Indictment  for,  not  specifyinff  wliether  by  day  or  ni^lit,  clinr;,'('s 

tiu'  act  done  in  the  day  time vii,  lOrt 

Gaining  admission  to  car  l)y  concealment  of  self vii.  lofl 

An  express  car  is  a  freiylit  car vii.  106 

Proof  of  ownersliip  of  car  need  not  bo  distinctly  mado vii.  l(,o 

BUIItERY. 

Prosecuting  officer  receivinp  promissory  note  of  accused  person  .is  a 

bribe ji.    03 

Not  necessary  in  indictment  to  recite  the  facts  wiiich  j^jve  tliiiij; 

offered  a  value,  nor  to  cliargo  tiuit  a  definite  smn  of  money  \v,is 

offered i  v.    71 

Charging  offer  made  to  one  as  member  of  h?gisl;iture  and  also 

member  of  a  committee,  states  but  one  olfen.se jv.    71 

Promising  a  thing  valuable  when  offered,  or  which  will  be  vulu- 

ablo  when  delivered,  is  a  crime iv.    71 

Variance i  v.    78 

Proof  of  other  acts  of  bribery iv.    78 

Township  trustee  receiving  bribe vii.  113 

Note  on  evidence  Iwfore  legishitive  committee vii.  1 .1  I'JO 

Obtaining  contract  for  supplies  by  bribe vii.  113 

Admissibility  of  letter  to  accused vii.  113 

Right  of  appeal viii.  113 

Motion  to  dismiss  on  ground  of  offense  not  proven viii.  113 

Using  money  to  infiuence  votes viii.  113 

Person  conveying  offer  of  bribe  by  another  to  ii  third  person  is 

guilty  of  offering  the  bribe viii.  IJSS 

Testimony  of  accotnplice x.    97 

Note  on  offering  to  bribe  vutcrs  ami  jurors x.  135 

BURDEN  OF  PROOF. 

Does  not  shift  in  trial  for  assault  with  deadly  weapon viii.    53 

BURGLARY. 

Entering  through  chimney 1.     363 

Owner  or  one  of  the  family  sleeping  in  pai't  of  his  store  constitu- 

tutes  it  his  dwelling— not  so  if  an  employe  sleeps  there i.  363 

Entering  sleeping  room  through  window  at  night i.  366 

Intent  for  the  jury i.  366 

Committed  only  at  night i.  367 

Defendant  entitled  to  benefit  of  doubt  when  act  not  specifically 

proven  as  to  time i.  367 

Evidence  that  prosecutor  discovered  between  daylight  and  sun- 


AMERICAN  CRIMINAL  REPORTS. 


CU 


BUKOLARY— ConWuHcd.  p^^^j, 

rise  that  his  house  had  been  broken  into  sufficient  to  suh:uit  to  jii: y 

that  breaking  was  in  night  time i.  869 

Entering  without  breaking,  to  commit  felony,  but  breaking  out 

in  escaping  is ,j^    27 

— -  Entering  open  outer  door  to  commit  felony,  and  unlatcliing 

inner  door  is iii     35 

Constructive  breaking iji     3^ 

Possession  of  stolen  goods  as  evidence  of iii.  26,  iv,  83,  vii.  126 

. — ■  Dwelling  house  occupied  in  part  by  servant iv.    90 

Common  law  and  statute iv.  00  v,    03 

No  degrees  in iv_    90 

Indictment  when  not  bnd  for  duplicity iv.  83,  v.    04 

Indictment  for,  defective  not  alleging  building  is  the  projK'rty  of  a 

corporation  or  pei-son y_    gg 

Building  only  occupied  by  owner  once  or  twice  a  year  not  a 

dwelling  house v.    08 

Curti'age  defined v.    08 

Note  on  "  trithin  the  curtilage"  of  a  divcUivg  house v.  103,  104 

Of  a  granary v.    08 

One  acquitted  of,  under  indictment  charging  both  burglary  and 

larceny,  may  be  convicted  of  the  latter v.    08 

Sufficient  asportation v.    08 

Sufficient  breaking v.    08 

Jury  assuming  property  has  value v.  105 

Thrusting  arm  through  opening  between  chinks v.  105 

Where  larceny  has  been  committed,  possession  of  stolen  goods 

evidence  of vi.    80 

Note  on  possession  of  stolen  goods vi.  82-84 

Parties  carrying  away  goods  from  a  house  in  day  time,  which 

they  broke  into  in  night  time,  does  not  affect  the  case vi.    85 

—  Evidence  on  separate  trial  of  one  of  several  defendants vi.    88 

Incorporation  of  railway  company  nor  its  ownership  of  depot  build- 
ing need  be  alleged vi.    08 

Negative  words  not  essential  to  indictment vi.    00 

Accused,  if  found  guilty,  may  be  sentenced  although  a  material 

part  of  the  description  of  tlie  offense  be  omitted  from  indictment. vi.    00 

Value  of  goods  need  not  be  alleged vi.    00 

Wrong  initial  of  house  owner's  name  in  indictment  not  a  fatal 

variance vi.  106 

Evidence  of  other vi.  106 

And  larceny — proof  of  prior  conviction  of  petit  larceny vi.  510 

What  is  a  dwelling  house vi.    01 

Circumstantial  evidence vii.  126 

In  the  first  degree vii.  132 

Proof  of  breaking  essential viii.  117 

Persuading  another  to  commit viii.  117 

Where  owner  induces  another  to  enter  his  premises  and  take  his 

property  the  latter  is  not  guilty  of viii.  117 

Room  in  hotel,  dwelling  house  of  roomer,  when ix.  145 

■^  Note  on  ownership  of  property .ix.  147,  148 

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642  INDEX  TO  VOLS.  I  TO  X, 

BURGLARY— Cojittnwed.  page. 
And  assault  to  commit  rape  can  not  be  joined  in  different  counts 

of  same  indictment •. ix.  343 

Declaration  of  alleged  owner,  claiming  goods x.  135 

Declarations  of  one  accused  by  confession  of  another,  denying 

complicity,  are  hearsay x.  135 

No  presumption  of  guilt  from  possession  of  stolen  goods x.  13,1 

Overruling  application  for  contiuuanco x.  140 

Necessary  indentitication  of  evidence  given  at  first  trial  to  Wiu- 

rant  its  admission  at  a  second  trial x.  140 

Note  on  breaking  premises  to  take  possession  of  property  under 

claim  of  oumership x.  14Ji 

Possession  of  burglar's  tools x.  150 

CERTIORARI. 

Legality  of  judgment  for  costs  not  reviewable  upon iv,  230 

Denial  of  public  trial  reviewable  upon ix.  719 

CHARGE  OF  COURT, 

Assuming  fact  error i.  273.  309 

Enumerating  facts  erroneous 1.  293 

—  Upon  presumption  of  innocence i.  015 

Upon  presumption  of  guilt,  from  possession  of  stolen  property  in 

larceny iii.  204 

Assuming  to  decide  weight  of  evidence  erroneous iii.  233 

Defining  the  time  and  another  the  certainty  jury  must  have  of 

defendant's  guilt  need  not  be  united ill.  405 

Should  not  emphasize  impeaching  evidence iii.  4(5 

As  to  strained  constructions iii.  405 

Erroneous,  cured  only  by  withdrawal iii.  233 

As  to  presumption  of  guilt iii.  244 

Omission  in,  where  no  recjuest  Is  maile iii.  297 

^—  Expression  of  opinion  in,  as  to  guilt  of  defendant  is  error iii.    30 

As  to  intent  in  larceny iii.  250 

In  larceny  that  unexplained  possession  of  stolen  property  was  con- 
clusive evidence  of  guilt,  error iii.  260 

In  rape  as  to  time  victim  made  complaint  being  a  relevant  circum- 
stance  iii.  379 

COMMITMENT. 

Process  of,  con  not  enlarge  record iv.  068 

COMMON  LAW. 

No  common  law  offenses  against  the  United  States ix.  370 

Note  on  American  common  law ix.  370 

CONCEALED  WEAPONS. 

Act  prohibiting  carrying  of,  constitutional i v.    99 

Arrest  for  carrying,  by  city  marshal  without  "varrant v.    80 

On  trial  for  carrying,  discovered  by  search  of  person  arrested  on  a 

warrant,  the  objection  that  the  search  wjis  a  tresjtass  properly  over- 
ruled   vii.  135 


PAGE. 

it  counts 

ix.  343 

X.  135 

denying 

X.  135 

X.  135 

X.  UO 

al  to  wiii- 

X,  140 

'Hy  under 

X.  149 

X.  150 

iv.  230 

ix.  719 

i.  273,309 

i.  203 

i.  615 

property  in 

iii.  204 

iii.  233 

1st  liave  of 

iii.  405 

iii.  4o5 

iii.  405 

iii.  233 

iii.  244 

iii.  297 

ror iii.    *5'' 

iii.  250 

l-ty  was  con- 

iii.  260 

antcircuin- 
iii.  379 

iv.  568 

ix.  370 

ix.  376 

iv.    99 

' V.    36 

irreatfd  on  a 
operly  over- 
vii.  135 


AMERICAN  CRIMINAL  REPORTS.  643 

CONCEALED  WEAPONS-Confrnwed.  p^GE. 

Carrying,  in  a  covered  basket  on  one's  arm viii.  126 

Evidence  of  carrying,  obtained  by  unlawful  search  of  person  by 

officer  is  admissible jj^   i^n 

■ Person  threatened  justified  in  carrying jx.  156 

Note  on  justification  of  carrying  concealed  weapons ix.  156,  157 

Deputy  mai-shal  carrying x.  161 

CONCEALING  DEATH  OF  CHILD. 

Crime  committed  although   of  necessity  made  known  to  some 

one iv.  108 

CONCEALING  STOLEN  PROPERTY. 

Party  knowing  property  to  have  been  stolen  has  no  right  even  for 
his  own  protection  to  conceal  the  same jy.  338 

CONFESSIONS.  See  Admissions,  Evidbncb. 

Can  not  goto  jury  unless  shown  to  be  voluntary.. v.  107,  vi.  206,  .ix.  269 

Corroborated  by  circumstances v.  443 

Corpus  delicti  proved  before,  admissible ix.  383 

Confinement  under  charge  of  capital  offense  does  not  necessarily 

make,  involuntary x.  168 

•  Of  one  of  two  indicted  for  homicide  not  admissible  against  the 

other X.  168 

Note  on  confessions  inadmissible  unless  voluntary x.  226.  227 

Note  on  sufficiency  of,  for  conviction x.  227 

CONSPIRACY. 

Alleging  or  proving  consummation  not  necessary i.  103 

Not  necessary  that  anytliing  should  be  done  in  pursuance  of  the  i.  105 

Indictment  for,  to  commit  robbery i.  105 

To  do  a  lawful  act  by  criminal  means ii.  23 

Partner  conspiring  with  stranger  to  execute  and  circulate  partner- 
ship notes iii.  54 

Of  two  to  defraud  railway  company iii.  37 

Evidence  tending  to  establish  a,  consists  of  a  largo  number  of 

facts  and  circumstances iii.  37 

Acts  committed  in  a  State  other  than  the  one  in  which  indict- 
ment is  found iii.  37 

Effect  of  nolle  pros,  as  to  one  party  charged iii.  50 

Effect  of  acquittal  in  another  State  of  co-conspirators iii.  37 

Where  two  are  indicted  and  tried  together  both  must  be  con- 
victed or  acquitted iv.  582 

Not  intending  to  commit  the  particular  crime iv.  296 

Money  lender  and  attorney  conspiring  to  defraud  borrower v.  109 

To  injure  character  of  third  person v.  113 

Indictment  for,  without  charging  corrupt  confederation v.  123 

To  obtain  goods  by  false  pretenses v.  127 

Indictment  need  not  specify  means v.  127 

tintion  to  quash  not  sustained  if  any  count  is  good — v.  127 

Verdict  eilent  on  one  count  is  an  ocijuittal  on  that  count v.  127 

Joint  liability  of  conspirators v.  438 


644  INDEX  TO  VOLS.  I  TO  X 

C9NSPIRACY— Conhnuerf.  page. 

Declarations  of  conspirators v.  486 

Information  for,  need  not  be  against  conspirators  jointly vi.  113 

To  compel  person  to  sign  his  b^ik  check vi.  113 

Defined vi.  570 

Acts  and  declarations  of  conspirators  admissible  in  evidence — 

when vi.  5*0 

— -  Where  a  number  of  men  combine  to  invade  a  man's  house,  and 
go  there  armed,  and  any  one  of  them  kills  him,  all  are  guilty  of  mur- 
der  vii.  443 

Note  on  declarations  and  letters  of  one  conspirator  admissible 

against  all vii.  149,  150 

To  murder viii.  131 

Circumstances  essential  to  conviction viii.  131 

To  procure  abortion viii.      1 

To  defraud  United  States  of  land  by  false  entries ix.  101 

Overt  act ix.  101 

Employes  of  railway  company  quitting  work  in  a  body ix.  169 

Combination  of  two  or  more  to  injure  illegal ix.  109 

Act  of  Congress  legalizing  incorporation  of  trades  unions  does 

not  sanction  illegal  combinations ix.  109 

A  strike  ia  not  necessarily  a  conspiracy ix    169 

Indictment  for,  to  rob ix.  199 

Conviction  of  conspirators  entrapped  into  an  attempt ix.  199 

On  a  trial  for  conspiracy  to  rob,  value  of  property  need  not  be 

proven  though  alleged ix.  199 

To  commit  a  felony  in  a  sister  State ix.  199 

Note  on  conspiracy  to  do  that  in  which  all  must  partici- 
pate  ix    208,  20i' 

To  prevent  non-union  workmen  from  obtaining  employment x.  227 

Prosecution  by  information x.  227 

Note  on  condtinations  among  workmen — lawful  and   unlaivful 

means x.  240-311 

CONSPIRATORS. 

Acts  and  declarations  of  one  conspirator  are  acts  and  declarations 
of  all vii.  443 

CONSPIRACY  TO  DEFRAUD  A  COUNTY. 

By  collection  of  fraudulent  bills vii.  137 

BiU  of  particulars vii.  137 

CONSTITUTIONAL  LAW. 

Statute  validating  all  the  ordinances  of  a  city i.  559 

Act  prohibiting  sale  and  also  the  giving  away  of  liquors  on  elec- 
tion days  not  void  or  obnoxious i.  460 

Provision  in  a  statute  against  conspiracy  that  it  shall  not  be  neces- 
sary to  charge  the  particular  felony,  is  unconstitutional  i.  105 

Constitutional  right  of  accused  "  to  demand  nature  and  cause  of 

accusation  " i.  567 

—        Vaiver  of  jury  in  misdemeanors i.  563 

Not  necessary  that  the  title  by  which  a  bill  passes  both  houses  of 

liiinoia  Legislature  should  be  the  same ii.  396 


4'^ 


AMERICAN  CRIMINAL  REPORTS.  ^45 

CONSTITUTIONAL  LAW— Conhmted.  pj^Qj.. 

Repeal  of  statute  by  subsequent  enactment iii,  "310 

Law  excluding  colored  citizens  from  juries iij.  515,  x.  342 

■  Act  of  Congress  punishing  exclusion  of  negroes  from  jury iii.  547 

Removal  of  criminal  prosecution  to  Federal  court iii.  515 

Mandamus  to  Federal  judge  to  remand  cause  wrongfully  removed 

from  State  court jij   524 

Jurisdiction  of  United  States  Supreme  Court  to  accord  habeas 

corpus iii_  547 

Statute  making  stenographer's   minutes   evidence    in  criminal 

cases iii.    7g 

Jury  service  confined  to  one  county iv.  106 

Right  of  trial  by  jury  and  where  iierson  chaiged  with  crime  must 

be  tried iv.  106 

Trial  by  jury  in  criminal  case  can  not  be  waived iv.  Ill 

■  A  law,  constitutional  under  certain  limitations,  exceeding  those 

limitations  is  operative  within  them iv.  112 

Person   imprisoned   for  refusing  to   testify  released  on  habeas 

corpus iv.  116 

"Verdict  of  jury  less  than  twelve  in  capital  case  a  nullity iv.  574 

Missouri  olomargarine  statute  constitutional jv.    16 

Patentee  not  protected  against  violation  of  State  laws iv.    16 

Patent  a  contract iv.    16 

Deprivation  of  liberty  or  property iv.    16 

Failure  to  express  all  objects  of  an  act  in  title iv.  168 

Presence  of  defendant  in  capital  case iv.  410 

Presence  of  accused  before  triers iv.  417 

Act  establishing  court  can  not  be  attacked  by  special  plea iv.  379 

Act  requiring  peddlers  to  obtain  license  unconstitutional iv.  349 

Act  providing  for  drawing  of  grand  jurors  by  sheriff  and  clerk 

unconstitutional v.  162 

Quashing  indictment  found  by  grand  jury  organized  under  uncon- 
stitutional law v.  162 

Federal    constitution    as   applying   to   state   criminal   prosecu- 
tions  V.  166,  vii.  509 

State  prosecutions  by  information v.  166 

Warrant  of  arrest  on  affidavit v.  172 

Right  to  public  trial v.  178 

Fifth  amendment  to  U.  S.  constitution,  jurisdictional vi.  122 

Habitual  criminal  acts  constitutional vi.  135 

Legality  of  imprisonment  under  statute  providing  for  waiver  of 

jury  trial  tested  by  habeas  corpus vi.  140 

Holding  of  property  subject  to  state  police  regulations vi.  148 

Note  on  the  fourteenth  amendment  to  U.  S.  Constitution  as  a  limi- 
tation upon  tiie  police  power  of  the  States vi.  156-163 

Imprisonment  for  contempt  of  court vi.  148 

Fines  for  violation  of  Iowa  prohibitory  liquor  law vi.  148 

Imprisonment  for  debt  under  the  bastardy  act vi.    70 

Essential  ingredient  of  crime  can  not  be  dispensed  with  by  stat- 
ute in   indictment vi.  304 

Statute  providing  for  visit  of  jury  to  premises  where  crime  was 

committed vii.  509 


646 


INDEX  TO  VOLS.  I  TO  X. 


CONSTITUTIONAL  LXYf— Continued.  page. 

Waiver  of  constitutional  privileges vii.  509 

What  justifies  judiciary  in  declaring  an  act  void vii.    33 

Act  providing  for  new  trial n vii.  210 

Province  of  jury  as  impaired  by  the  Legislature vii.  291 

Statute  and   ordinance    providing   for    keeping  and   licensing 

dogs vii.  47 J 

Road-work  is  not  involuntary  servitude vii.  479 

Paction  10  of  the  Bill  of  Rights  applies  only  to  criminal  prosecu- 
tions for  violations  of  State  laws vii.  479 

Note  on  disordei'ly  houses— power  to  regulate  and  suppres8.\u.  493,  497 

Jurisdiction  of  offense  committed  on  boundary  line  between  two 

States viii.  lOO 

Power  of  court  to  suspend  sentence ix.  4;}9 

— —  Compelling  accused  to  stand  up  for  identification ix.    b2 

Execution  of  sentence  after  expiration  of  reprieve ix.  494 

Discharging  jury ix.  209 

Journals   of   House   and   Senate   as  evidence  of   constitutional 

adoption ix.  284 

Banking  laws  not  class  legislation ix.  284 

Imprisonment  for  receiving  deposits  knowing  bank  insolvent,  .ix.  284 

Public  triwl  under  Micliigan  constitution ix.  719 

Accused  meeting  witnes.ses  face  to  face ix.  865  x.  242 

One  act  offense  against  two  sovereignties ix.  128 

Note  on  right  of  accused  to  be  present  during  trial ix.  348 

Statute  making  juries  judges  of  the  law  unconstitutional ix.  530 

Title  of  act ix.  243 

Note  on  right  of  accused  in  all  criminal  prosecutions  to  be  con- 
fronted with  witnesses  against  him x.  349 

Right  of  accused  to  be  informed  of  accusation  against  him x.  251 

CONSTRUCTION  OP  STATUTE^.. 

Statutes  construed,  how v.  166 

Penal  statutes  strictly  construed v.  190 

A  "city  prison"  not  a  "county  jail" v.  190 

In  respect  to  repeals  by  implication vii.  499 

Containing  distinct  der'moiations  of  alternative  oirenscs x.  97 

CONTEMPT. 

Newspaper  article  obstructing  the  administration  of  justice  ...   .i.  107 

Constructive i.  107 

— —  Power  of  court  to  punish  criticisms  on  its  official  conduct  after 

cases  are  ended i.  107 

Proprietor  of  newspaper  punished  for i.  107 

Responsibility  of  managing  editor i.  107 

Legal  defense  not  ground  for  discharging  rale i.  107 

Enforcing;  order  in  case  of  its  disobedience  by  attachment  for. . .  ii.  184 

—  Respondent  giving  recognizance  to  appear  on  a  future  day  can  not 

on  that  day  file  new  affidavits  and  dispute  propriety  of  rule ii.  184 

Avoiding  service  of  process  is ii.  182 

. (Conclusiveness  of  answer  to  rule  to  show  cause ii.  182 

• Power  of  notary  public  to  coniiuit  for iv.  134 


AMERICAN  CRIMINAL  REPORTS. 


647 


PAGE. 


CONTEMPT— Continued. 

Punishment  for  disobeying  subptjena y   103 

Punishment  for  civil ^'  ja., 

Misconduct  of  juryman ^j  ^g.^   ^-,j 

Distinction  between  civil  nnd  criminal vi.  163  ix!  221 

Note  on  contempt  of  court  as  a  specific  criminal  offense 

vi.  171-175,  ix.  229 

Offensive  language  to  court viii.  138 

Criminal,  proceedings  reviewable  on  writ  of  error ix.  221 

Attachment  for,  will  lie  against  party  disolteying  injunction,  .ix.  221 

CONTINUANCE. 

Counsel  not  having  time  to  prepare  case  for  trial i.  206,  iv,    68 

Right  to,  for  absence  of  witnesses , j,  559 

When  error  to  refuse ii,  445 

Affidavit  for,  as  evidence  of  defendant  having  waived  right  to 

confront  witnesses ii.  442 

Absence  of  witness  not  a  ground  for,  when iv.  52,  351 

Within  legal  discretion  of  trial  court. .  .iv.  43,  v.  332,  357,  448,  ix.  117 

Showing  for,  on  ground  of  absence  of  witnesses  must  be  full  and 

dir^jt V.  443,  vi.  461,  vii.  225 

Cumulative  evidence  not  ground  for vi.  525 

CORPORATIONS. 

Bringing   corporation     charged   with     criminal     offense    into 

court iv.  137,  ix.  370 

Indictable  at  common  law ix.  370 

Passenger  refusing  to  comply  with  reasonable  by-law  of  transpor- 
tation company  ought  to  be  convicted  of  a  breach  of  it x.  155 

CORPUS  DELICTI. 

A  skeleton  found  corresponding  in  sex,  size  and  race  with  the  per- 
son defendant  wa«  charged  with  killing,  held  sufficient  direct  evi- 
dence of i.  318 

Established  by  circumstantial  evidence iv.  140 

Conclusiveness  of  such  circumstantial  evidence  to  be  determined 

ly  jury iv.  140,  v.    43 

In  prosecutions  for  homicide,  must  be  shown  first iv.  357 

Identification  of  body iv.  417 

Extrajudicial  admissions  of  accused,  without  proof  aliunde,  will 

not  e8tal)lish v.  43,  363 

Instructions v.  256 

CORRUPTING  WITNESSES. 

Not  necessary  to  allege  that  witness  was  recognized  in  the  judicial 

proceeding vi.  175 

Admission  of  indictment  in  case  at  bar  as  evidence vi,  175 

CORRUPTION  IN  OFFICE. 

Indictment  must  state  all  the  circumstances iv.  143 

Act  distinctly  charged  as  knowingly  done  with  corrupt  motives. iv.  143 

COSTS. 

Sentence  to  hard  labor  for  non-payment  of,  in  criminal  case. . .  .v.  105 


648 


INDEX  TO  VOLS.  I  TO  X. 


COfiT^— Continued.  page. 

Imprisonment  for vi.  110 

Pi'isoner  taking  insolvent  debtor's  oath  entitled  to  full  discharge .  vi.  1 10 

Accused    convicted    under  some  counts    and   acquitted  under 

others vi.  209 

Ordinance  imposing,  of  prosecution,  void vi.  418 

COUNSEL, 

Competency  of  counsel  assigned  not  an  issue  on  a  motion  for  a  new 

trial i V.  333 

Must  confine  arguments  to  evidence iv.  338 

Prosecutor  commenting  on  failure  of  defendant  to  testify,  .iv.  516,  529 

Right  of,  to  consult  witness iv.  253 

Time  to  prepare  for  defense iv.    53 

Misstating  evidence v.  499 

Misconduct  in  statement  or  argument  v.  417, 601, 615,  vi.  21,  65,  487,  508 

Court  warning  jury  against  misconduct  of    counsel  will  cure 

error v.  615 

Employment  of  special v.  499 

Advice  of,  not  admissible  to  justify  crime vi.  436 

COUNTERFEITING. 

Foreign  bank  notes viii.  147 

Having  possession  of  tools  with  intention,  though  without  ability 

to  use viii.  147 

Proof  of  existence  of  bank viii.  147 

State  jurisdiction  over viii.  147 

COURT  AND  JURY. 

Competency  of  evidence  decided  on  by  former,  its  sufficiency  by  tlie 

latter v.    43 

In  trial  of  criminal  cases,  all  evidence  of  doubtful  competency 

should  be  admitted v.  438 

Right  of  jury  to  determine  law v.  601 

Jurors  not  judges  of  the  law ix.  636 

COURTS. 

Power  to  suspend  sentence  at  common  law ix.  439 

Power  of  governor  to  grant  reprieves,  and  of,  to  stay  sentence 

ix.  502-504 

CROSS-EXAMINATION. 

Right  of  respondent  on i.  618 

CRUELTY  TO  ANIMALS. 

Construction  of  statute iv.  146 

Burden  o'  proof  on  state iv.  146 

Useful  object  in  killing  takes  act  out  of  statute iv.  146 

Different  descriptions  of  same  offense  not  repugnant v.  201 

Surplusage  does  not  render  indictment  insufficient v.  201 

Killing  trespassing  animals viii.  157 


AMERICAN  CRIMINAL  REPORTS.  649 

DANGEROUS  WEAPON.  pj^OE. 

What  is,  aquestiun  of  fart j,  (jo,  273 

Use  of,  in  expelling  intruder jji,    15 

DEAF  MUTE. 

Incapacity  to  understand  proceedings  at  trial  for  felony iii.  428 

DEATH  FROM  SUROICAL  OPERATION. 

When  respondent  not  responsible,  although  operation  performed  on 
deceased  caused  his  death i.  298 

DECEASED  WITNESS. 

Evidence  of,  on  former  trial  admissible  on  second  trial  of  same  in- 
dictment    i.  199 

Statement  of  testimony  of,  in  bill  of  exceptions  not  admissible..!.  199 

DEPOSITIONS. 

Failure  of  deponent  to  subscribe vii.  568 

Justice  of  peace  amending  defects  in vii.  568 

Right  to  use,  in  criminal  case  is  statutory vii.  452 

DISCRETION. 

Trial  of  accessory  before  principal  is  a  matter  in  the,  of  the 
court i.  251 

Requiring  prosecutor  to  elect  on  which  count  he  will  proceed  to 

trial  is  a  matter  in  the,  of  the  trial  court i.  230 

Issuing  writs  an  exercise  of  judicial iii.  422 

DISORDERLY  ACT. 

Breach  of  bond  to  support  family iii,    56 

DISORDERLY  HOUSE. 

Proving  matter  of  description iv.  444 

— —  Character  of  those  who  frequent  it  immaterial iv.  444 

Reputation  of  frequenters  and  proof  of  specific  acts viii.  173 

What  constitutes viii.  178 

Under  indictment  charging  keeping  a,  not  alleging  gaming  as  one 

of  the  causes  of  disorder,  conviction  of  keeping  a  common  gaming 

house  can  not  be  had ix.  235 

Specifications  of  causes  of  disorder  am  matters  of  description,  .ix.  235 

Note  on  what  constitutes  a  disorderly  liouse ix.  238,  239 

Evidence  that  defendant  had  kept  another,  inadmissible x.  273 

Admitting  proof  that  the  character  of  the  house  was  reputed  bad, 

error,  when x.  272 

DISTURDING  RELIGIOUS  MEETINGS. 

What  constitutes ii.  133 

Evidence  admissible  on  trial  for ii.  133 

Congregation  need  not  be  actually  engaged  in  acts  of  worship,  .ii.  133 

Acts  are  wanton  if  done  without  regard  to  consequences ii,  133 

DITORCE. 

For  misconduct  as  bar  to  second  marriage ii.  618 

Territorial  courts  have  no  jurisdiction  to  grant  divorce  between 


Iii 


650 


INDEX  TO  VOLS.  I  TO  X. 


DIVORCE— Conftntied.  paoe. 

resiilentH  and  citizens  of  one  of  the  States,  neither  being  residents  of 
the  Territory ii.  ir>0 

DOGS. 

At  common  law  not  subjects  of  larceny ii,  339 

DRUNKENNESS.  ^ 

Can  not  palliate  crime iii.  165 

Note  on,  as  to  what  weight  the  fact  of  drunkenness  ahouhl  have  in 

deciding  criminal  responsibility iii.  I(i2-lfl5 

Jury  may  consider  fact  of  defendant's  intoxication iii.  idO 

Evidence  of  drunkenness  admissible  as  bearing  on  intent vi.  178 

Note  on  drunkenness  as  affecting  degree  of  crime vi.  18',\  183 

Becoming  drunk  through  mistake viii.  1(55 

Law  punishing  drunkenness,  constitutional viii.  165 

May  or  may  not  excuse  crime  or  mitigate  punishment ix,  534-530 

DUPLICITY. 

Indictment  charging  accused  with  the  murder  of  three  persons  bad 
as  charging  three  offenses i.  345 

DYING  DECLARATIONS. 

On  trial  for  murder  restrictions  of i.  809 

On  trial  for  attempt  to  commit  abortion,  exclamations  of  tl>o 

woman,  the  day  before  she  died,  not  admissible i.  301 

Where  prisoner   who  has  killed  two  persons  at  the  same  time, 

one  dying  instantly,  the  other  surviving  a  few  hours,  is  on  trial  for 

the  murder  of  the  former,  the  dying  declarations  of  the  latter  are 

inadmissible ii.  278,  iii.  343 

To  be  admissible  must  form  part  of  the  res  gestae ii.  283 

Thefactof  the  killing  being  admitted,  dying  declarations  should 

be  excluded ii.  282 

Competency  of,  must  be  determined  by  the  court -ii.  322 

•^— Upon  admission  of,  defendant  has  right  to  show  deceased  did 

not  believe  in  Qod  or  in  a  future  State ii.  322 

Notes  on,   when  dying  declarations    are  a  part  of    the   res 

gestae ii.  11-13,  iii.  220-224 

To  be  admissible  must  have  been  made  in  extremis. . .  iii.  225,  iv.   152 

Made  just  after  being  told  by  phj'sician  he  must  die,  admissi- 

218 


ble. 


.m. 


Only  admissible  when  death  of  deceased  is  the  subject  of  the 

charge  and  the  circumstances  of  the  death  the  subject  of  the  dec- 

claration iv.  152 

Relating  to  facts  unconnected  with  declarant's  death  inadmissi- 
ble  iv.  153 

Other  evidence  can  not  exclude  them iv.  152-155 

Opinion  or  inference iv.  155 

Inadmissible  under  indictment  for  abortion vi.      7 

Proof  of  circumstances  under  which,  were  made  fixing  their  ad- 
missibility  vi.  418 

In  writing  not  admissible vi.  418 


AMERICAN  CRIMINAL  REPOilTS.  051 

DYING  DECLARATIONS-Conh'nued.  paqe. 

Declarant  under  belief  of  speedily  impending  death,  his.  are  nd- 

misnMe ..jj    g,.,(, 

Preliminary  proof  of,  should  bo  made  in  absence  of  jury viii.  llil 

Not  under  oath  inadmiHsible , viii.  lijl 

Admissibility  of,  question  for  court viii.  5(5J 

Sufficiency  of  evidence  to  show  declarant's  belief  and  constioiis- 

ness  of  impending  death viii.  500 

When  not  admiH8il)le x.  27i> 

Error  to  admit,  without  full  inquiry  into  circumstances  under 

which  made x.  270 

Note    on   drcuviHtancea   rendering    dying  declarations   admis- 

«bte .X.  283,  283 


i 


ELECTION. 

On  the  trial  of  an  indictmont  of  two  counts,  one  alleging  forging 
of  a  draft,  and  the  other  tiie  uttering  and  publishing,  requiring  prose- 
cutor to  elect  is  in  the  discretion  of  the  court i.  2C0 

On  trial  of  an  information  for  seduction  containing  three  counts, 

prosecutor  introducing  evidence,  tendency  to  prove  one  of  the  acts 
will  be  held  to  have  made  an i.  600 

As  a  rule  retjuiring   district   attorney  to  elect   upon   which  of 

several  counts  he  will  proceed,  is  wholly  within  the  discretion  of  the 
court ii,  117 

No  error  in  refusing  to  reijuire  prosecution,  in  a  trial  on  an  infor- 
mation, one  count  of  which  charged  larceny  of  chattels  and  a  second 
count  was  for  larceny  of  money,  to  elect  upon  whicli  one  he  would 
proceed,  as  both  were  based  upon  same  transaction ii.  117 

ELECTIONS. 

Stato  jurisdiction  of  crime  committed  by  Federal  marshal  at  a 
general  election  within  the  State iv.  626 

EMBEZZLEMENT. 

One  employed  by  tlie  owner  for  a  stated  price  to  sell  his  watch, 
afterwards  converting  it  to  his  o    n  use  is  guilty  of i.  140 

A  note  on  conversion  of  propci  y  to  his  own  use  by  one  tcith  whom 

it  was  left  for  a  particular  purpose i.  149,  150 

Statute  against,  from  "  any  corporate  body  in  this  State  "  con- 
strued  i.  160 

Who  is,  who  is  not,  a  clerk  or  servant i.  150,  153 

One  employed  by  prosecutrix  to  purchase  certain  securities  for 

her  and  having  her  written  directions  how  to  apply  proceeds,  con- 
verting same  to  his  own  use  held  guilty  of i.  157 

Church  collector,  who  is  entitled  to  a  certain  percentage  of  tlie 

pew  rents  whoever  collects  them,  converting  same  to  his  own  use  is 
not  guilty  of ii,  107 

——  Where  money  is  placed  in  a  peraon's  hands  to  loan  at  a  fixed  rate 
and  he  converts  part  of  it  to  his  own  use,  unless  he  guarantees  the 
interest  rate  and  is  personally  liable  for  return  of  money,  he  is  guilty 
of. ii.  109 


652 


INDEX  TO  VOLS.  I  TO  X. 


EMBEZZLEMENT— Conh'nucd.  pacif:. 

Error  to  admit  evidence  of  another  diHtinct ii.  t09 

r Hotel  keeper  converting  to  his  own  uho  bugKUge  in  his  poHsesHion 

and  control ii.  Ill 

By  agent  for  sale  of  machines ii,  117 

Indictment  under  statute  against,  charging  simply  ordinary  lar- 
ceny, is  insufficient ii.  114 

What  facts  must  be  set  out  in  an  indictment  for ii.  114 

That  which  was  larceny  at  common  law  is  not  included  within  the 

statutes  against ii.  114 

^—  Notes  on  agents,  clerks,  apprentices,  servants  and  bailees,  convert- 
ing money  intrusted  to  them  to  their  oion  use ii.  110,  111,  114 

A  clerk  of  insurance  company,  converting  to  his  own  use  pro- 
ceeds of  checks  sent  the  company,  which  after  indorsing,  he  induced 

his  friends  to  cash,  held  rightly  convicted  of iii.  440 

One  fraudulently  converting  moneys  he  had   no  authority  to 

receive  not  guilty  of iii.    63 

Under  Pennsylvania  statute,  school  district  treasurer  converting 

school  fund  to  his  own  use  commits  emliezzlement iii.    68 

In  indictment  against  public  offlct^r  for,  of  public  money  not  nec- 
essary to  allege  his  election  or  appointment iii.    06 

Officer  de  facto  punishable  for iii.    66 

Essentials  of  indictment  charging,  of  copartnership  funds iii.    64 

Venue iii.  508 

Estoppel  does  not  apply  to,  cases iv.  103 

Defendant  in,  case  may  prove  actual  facts  in  dispute,  notwitii- 

standing  any  admissions  or  confessions iv.  103 

Of  any  officer  or  "  other  person  " iv.  106 

See  Note iv.  169 

By  servant  of  goods  coming  into  his  possession  out  of  the  ordinary 

scope  of  his  employment iv.  169 

What  is  possession  of  goods  by  an  employe  belonging  to  em- 
ployer  iv.  211 

Larceny  at  common  law .• iv.  211 

Construction  of  statute  defining iv.  211 

Note  on  fraudulent  breach  of  trust  and  felonious  taking.,  .iv.  174,  178 

Variance  as  to  owncrehip  of  securities  embezzled iv.  211 

Evidence  of  various  acts  of iv.  21 1 

Indictment  for,  in  language  of  statute,  sufficient iv.  211,  v.  206 

When  court  will  not  compel  an  election  as  to  a  single  act  of. .  .iv.  211 

To  constitute,  it  is  essential  that  owner  should  be  deprived  of  prop- 
erty eml)ezzled v.  203 

Statute  creates  no  new  offense v.  206 

Officer  of  society  can  not  deny  existence  of  such  society,  when. .v.  206 

Fraudulent  intent  essential v.  206 

Sufficiency  of  indictment  where  accused  is  "  agent  or  employe".. .v.  210 

Of  money  collected  on  lottery  ticket v.  210 

.—  Whatever  tax  moneys  come  into  the  hands  of  a  tax  collector  or  his 
clerk  come  lawfully,  and  neither  can  commit,  by  converting  them  to 
his  own  use vi.  183 


AMERICAN  CRIMINAL  REPORTS.  $68 

EMBEZZLEMENT— Confmued.  p^as, 

The  clerk  was  bound  to  account  to  his  employer  only vi.  188 

Wliere  several  felonies  are  part  of  the  same  trunsaction,  the  rule 

that  evidence  of  all  is  admissible,  does  not  apply  in vi.  18J 

Evidence  of  accused's  extravagant  liiliits  not  admlBsible vi.  188 

A'o^eon,  when  evidence  of  other  offeimtH  irre  (tdmimiible vi.  198 

By  attorney  acting  ob  agent  for  payee  of  note vil.  152 

Note  on,  by  drainage  commimonerit,  president  of  corjm'ation, 

showing  proof  of  other  acta  of..,. vii.  168,  164 

■ Relations  of  principal  and  agent  after  terniiuation  of  service  and 

payment  of  compensation vii.  153 

Averment  of  ownership vii.  153,  x.  200 

Agent  of  indorser  of  promissory  note  convertin;^  proceeds  of  its 

collection vil.  152 

• Agent  and  servant  in  Indictment  not  misnomer vii.  152 

Si)eciflcation  in  information  as  to  property  embezzled vii.  15'i 

Instruction  as  to  fraudulent  intent  proper vil.  152 

County  collector's  books  showing  shortage,  no  settlement  having 

been  made  by  officer,  his  swearing  money  was  burned  no  defense .  viil.  191 

Not  necessary  to  produce  officer's  commission vill.  191 

Officer  falling  to  take  oath  no  defense vlii.  191 

Evidence  of  expert  competent  to  show  standing  of  accounts,  .vlii,  191 

Immaterial  as  to  when  design  of  converting  the  money  was 

formed vili.  191 

Authentication  of  tax  books  by  seal  of  clerk  not  necessary vill.  191 

Exception  to  remarks  of  court  In  presence  of  jury vill.  191 

Partner  misappropriating  firm's  funds vill.  204 

Subject  of,  must  be  the  property  of  another vill.  204 

Partners  trustees  for  each  other  and  not  for  the  partnership,  .vill.  204 

Assignee  of  a  partnership  paying  the  debt  of  his  own  firm  first, 

guilty  of vlii.  185 

Restoration  or  offer  of,  no  defense,  going  only  towards  mitigation 

vill.  185 
Ghing  indemnifying  bond  no  defense vill.  185 

—  Note  on  what  ia  and  who  can  commit vill.  189,  190 

By  treasurer  of  Illegal  association  of  Its  funds Ix.  239 

Intent  to  return  money  no  defense ix.  248 

Validity  of  Nevada,  statute ix.  243 

By  agent  of  express  company  of  money  received  for  transmission 

Ix.  243 

Demand  and  refusal  to  pay  over  not  necessary Ix.  256 

Description  need  not  specify  any  particular  bank  note ix.  256 

On  trial  for,  from  domestic  coqwratlon,  existence  of  corporation 

shown  by  parol  evidence Ix.  256 

Under  indictment  containing  one  count,  proof  showing  eighteen 

successive  monthly  embezzlements,  defendant  convicted  of  but  one 

offense ix.  256 

Note  an,  of  money  consigned  to  employer  of  person  who  appro- 
priates it ix.  255 

—  By  copartner  when  a  copartnership  ia  agent ix.  250 

By  person  collecting  on  non-transferable  time  check ix.  256 


654 


INDEX  TO  VOLS.  I  TO  X. 


ii' 


I      ! 


EMBEZZLEMENT— Con^tnued.  page. 

By  attorney  <it  law  acting  as  agent  for  payor  of  note ix.  256 

Indictment  must  allege  that  money  caine  into  accused's  possesiiion 

in  the  capacity  he  is  described  as  acting  in x.  288 

•^^  Demurrer  to  sucli  defective  count  overruled,  objection  not  cured 

by  verdict x.  28il 

Defined x.  283 

And  larceny  distinguished x.  283 

Money  embezzled  without  the  state x.  291 

Agent,  what  constitutes x.  291 

By  private  banker x.  291 

Allegation  and  proof  as  to  converting  a  "  sinicial  deposit " x.  201 

ENTERING  WITH  INTENT  TO  COMMIT  LAKCENY. 

A  compound  offense iii.  364 

Presumption  of  guilt  from  possession  of  stolen  property iii.  264 

ESCAPE. 

Officer  permitting  escape  not  liable  if  his  warrant  is  void ii.  465 

The  fact  of  custody  and  the  legality  thereof  questions  for  the 

jury ii.    45 

Instruction  as  to  legality  of  custo<ly ii.    45 

Custody  by  private  pereon  after  legal  arrest  vithout  warrant..  .li.    45 

Cruel  treatment  as  bearing  on  bona  fides  of  custody ii.    45 

— ^  Custody  voluntarily  assumed   by  private  person  without  war- 
rant   ii.    45 

Making  violation  of  lawful  custody  criminal ii.    45 

Actufci  guilt  of  person  held  in  custody  by  private  person  without 

warrant  not  indispensable  to  legalitj'  of  custotly ii.    45 

Constable  no  right  to  kill  prisoner,  in  custody  for  misdemeanor,  to 

prevent  his ii.  624 

ESTOPPEL. 

Does  not  apply  to  criminal  cases iv.  162 

Secretary  can  not  deny  existence  of  society  whose  funds  he  is 

charged  with  having  embezzled v.  206 

EVASION. 

Liquor  seller  telling  his  patrons  they  must  not  drink  the  liquor, 
bought  of  him,  on  his  premises i.  483 

EVIDENCE. 

Sufficient  evidence  of  incorporation  on  trial  of  an  indictment  for 

stealing  from  corporation i.  178 

Transcript  of  public  records  admissible  as  evidence  in  criminal 

cases i.  206 

Of  deceased  witness  admissible  on  second  trial i.  199,  iv.  127 

Note  on  rules  governing  admission  of  testimony  of  deceased  tcitiiess 

on  second  trial i.  203,  206 

Statement  of  bill  of  exceptions  of  such  testimony  not  admissible,  i.  199 

Parol,  of  what  the  law  requires  to  be  reduced  to  writing i.  191 

Depositions  before  committing  magistrates i.  191 


AMERICAN  CRIMINAL  REPORTS. 


655 


EVIDENCT:- CoH<mM«d.  p^q^.^ 

Capacity  of  girl  between  nine  and  ten  years  old  as  witness  ques- 
tion of  fact  for  judge j,  195  jji   372 

Witness  referring  to  memorandum  showing  lact  involved  in  the 

issue i   187 

Note  on  witnp^a  refusuig  to  produce  memorandum  referred  to 

i.  187,  188 

Witness  can  not  testify  that  one  he  saw  go  to  bed  in  the  evening 

whom  he  found  in  same  bed  next  morning  was  in  that  bed  all  night 

i.  188 
— : —  As  to  bad  character  of  third  parties  who  might  have  comniittod 

the  crime  not  admissible i.  188 

Required  in  corroboration  of  accomplice i.  194 

Impeachment  of  witness j.  197 

Reputation  of  family  of  witness  not  admissible i.  199 

Transcript  of  public  records  as i.  206 

Intent  can  not  be  inferred  when,  shows  it  was  not  entertained,  .i.  249 

Statement  of  one  respondent  not  admissible  against  coresjiondent 

when i.  618 

AJl  presumptions  of  fact  within  disposal  of  jury i.  618 

Error  for  jury  to  infer  fact  of  which  there  is  no i,  34(5 

Which  raises  mere  conjecture,  should  not  be  left  to  jury i.  444 

Comparison  of  handwriting  by  jury i.    34 

See  Admissions  and  Confessions i.  89,  171, 17:^,  178,  182, 

272,  293,  315,  818,  824 

Order  in  which,  shall  be  given  within  discretion  of  court ii.  290 

Of  tendency  or  disposition  to  commit  the  crime  inadmissible. .  .ii.  506 

Which  does  not  prejudice  prisoner  not  subject  to  objection ii.  404 

Direct  contradictions  between  witnesses  for  jury  to  determine,  .ii.  396 

Of  respondent's  arranging  for  State's  witness  to  leave ii.  283 

Rejecting  all  the  testimony  of  witness  known  to  have  sworn  false 

in  one  material  particular ii.  454 

Direct  proof  of  actual  ix)sitive  knowledge,  when  guilty  knowledge 

is  an  ingredient,  not  required ii.    79 

On  cross-examination  respondent  can  not  be  questioned  as  to 

assaults  upon  other  parties ii.    58 

Note  on  rules  governing  cross-examination  of  defendant ii.  60,  61 

Nolle  prosequi  not  necessary  to  render  one  accomplice  compe- 
tent to  testify  against  another ii.  424 

That  accomplice  has  been  assured  of  immunity  from  prosecution 

no  objection  to  his  comjwtency  as  a  witness ii.  454 

Testimony  of  accomplice  to  be  received  with  caution ii.  454 

Privilege  of  counsel  for  respondent  to  test  capacity  of  witness 

before  testifying  in  chief ii.  454 

Right  (^f  counsel  to  private  conference  with  witnesses  before 

trial ".454 

Seo  Admissions  and  Confessions,  Absent  Witness,  Dying  Dec- 
larations, Husband  and  Wife,  Liquor  Selling. 

Of  defendant  accompanying  another  who  was  trying  to  mislead 

prosecutor ">•  273 


056 


INDEX  TO  VOLS.  I.  TO  X. 


ETIDENCE— Cojiftnued.  page. 

Showing  child's  answers  had  not  been  suggested  to  her iii.  273 

Of  criminal  capacity  does  not  establish  inference  of  guilt iii.  857 

Of  previous  conduct  of  defendant  toward  deceased  admissible,  .iii  183 

Of  conduct  to  support  testimony iii.  357 

Sustaining  witness  who  has  been  discredited iii.    37 

Note  on   showing  former  statements  of  impeached  witness  har- 
monizing with  the  testimony iii.    50 

Unsupported,  of  defendant iii.    73 

Of  defendant  not  to  be  rejected  solely  because  not  supported  by 

other  testimony iii.    73 

Permitting  criminating  questions  to  be  asked  defendant  on  cross- 
examination , iii.    78 

Prisoner's  statements  atiould  not  be  set  aside  simply  because  he 

hud  produced  cumulative  evidence iii.    73 

Declarations  of  joint  defendants  after  a  homicide  inadmissible. iii.  843 

Error  to  admit  testimony  of  witness  that  he  was  hired  to  leave 

state  which  fails  to  connect  defendant  with  the  transaction iii.  320 

Negative,  of  reputation  admissible iii.  323 

Inquiry  as  to  witness'  character  for  "  chastity  and  morality " 

projier  on  impeachment iii.  133 

Witness  testifying  to  owner's  identification  of  stolen  property  hear- 
say  iii.  256 

Wide  latitude  allowable  in  cross-examination  of  police  officer 

where  arrest  of  defendant  was  procured  through  a  decoy  who  was  let 

go  as  a  reward iii.    26 

Leading  questions  on  re-examination  permissible  when iii.  357 

In  corroboration  of  prosecutrix,  after  attempt  to  impeach  her, 

original iii.  405 

Signature  to  checks  to  prove  handwriting iii.  357 

Witness  familiar  with  a  handwriting  permitted  to  distinguish  be- 
tween genuine  and  forge<l  signatures iii.  357 

By  comparison  by  experts  of  writings  not  connected  with  the  case 

not  admissible iii.  133 

Of  flight  of  accused  to  avoid  arrest  admissible iii.    78 

Of  facts  tending  to  create  a  belief  in  the  mind  of  defendant  as  to  a 

material  issue iv.  178 

Of  convict  not  admissible  (Louisiana) iv.  181 

Of  other  disconnected  similar  offenses  not  admissible iv.  188 

Connection  of  similar  offenses  with  the  one  charged  ma.v  be  cir- 
cumstantially shown iv.  188 

Reading  from  a  book  on  medical  jurisprudence  not  introduced  in, 

or  proved  to  be  standard  authority,  error iv.  191 

Declarations  by  woman  to  physician  touching  symptoms  of  preg- 
nancy admissible iv.      6 

——  On  cross-examination  witness  testifying  to  such  declarations  can 
not  be  re-examined  as  to  other  unconnected   assertions  in  same 

conversation iv.     9 

As  to  other  prior  acts  admissible  though  tending  to  prove  other 

crimes iv.    15 

Of  previous  good  character  considered  by  jury iv.    23 


PAGE. 

...iii. 

272 

...iii. 

857 

>le..iii 

183 

. .  .iii. 

357 

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37 

a  har- 

...iii. 

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ted  by 

. . .  .iii. 

73 

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iii. 

73 

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....iii. 

73 

ble.iii. 

843 

0  leave 

iii. 

320 

iii. 

832 

rality" 

. . .  .iii. 

133 

y  hear- 

. . .  .iii. 

256 

officer 

was  let 

iii. 

26 

....iii. 

857 

h  her, 

.   ..iii. 

405 

iii. 

357 

ish  be- 

....iii. 

857 

le  case 

....iii. 

133 

...iii. 

78 

as  toa 

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36  cir- 

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188 

ed  in, 

..  .iv. 

191 

preg- 

...iv. 

6 

IS  can 

same 

...iv 

9 

other 

...iv 

15 

...iv 

-35 

AMERICAN  CRIMINAL  REPORTS.  657 

EVIDENCE— Conh'ntted.  p^^g 

Of  court  reporter  at  former  trial j^^  jg^ 

Error  to  read  record  of  divorce  to  establish  wife's  competency  as 

witness Jy       gg 

Ill  treatment  of  wife  can  not  be  shown  on  cross-examination,  .iv.    88 

Admissibility  of  stenographer's  notes  to  contradict  respondent. iv.    38 

Weight  of  defendant's  testimony  in  criminal  case  when  testifying 

in  his  own  behalf. .   iy_    53 

Parol,  not  admissible  to  show  contents  of  resolution  passed  by 

common  council ^ iy   279 

That  defendants  were  seen  on  railroad  track,  and  that  one  had  a 

revolver  two  days  before  homicide  on  said  tracks,  admissible iv.  351 

Malice  may  be  inferred  when  an  act  unlawful  in  itself  is  dona 

deliberately iv_  g51 

Defendants  having,  by  threats  to  shoot,  caused  a  passeiiger  on  rail- 
way car  to  jump  off  and  he  is  thereby  killed,  they  are  guilty  of 

murder iv.  351 

As  conduct  of  prosecutor  seeking  to  suppress  or  suborn  testimony 

admissible iv,  357 

Examining  experts  upon  theories  contrary  to  the  uncontradicted 

facts  of  the  case iv.  857 

Reading  of  scientific  books  to  jury,  error j-   '?o7 

Function  of  expert  witnesses  to  instruct  court  and  jury  in  those 

matters,  knowledge  of  which  can  only  be  gained  by  study  and  expe- 
rience  iv.  879 

Opinion  of  experts,  when  evidence  not  conflicting iv.  379 

Pre{X)iiderance  of,  to  establish  insanity  as  defense iv.  3bo 

When  conflicting,  expert  can  not  be  asked  opinion  drawn  from 

whole iv.  379 

Whether  defc  ndant  was  fixed  or  temporarily  insane  at  time  of 

commission  of  crime  question  for  jury iv.  395 

Of  defendant's  previous  habits  of  intoxication iv.  395 

Time  of  admission  of,  in  rebuttal  within  discretion  of  court iv.  395 

Opinions  of  non-experts  as  to  sanity  01  defendant iv.  895 

Exclamation  of  on  ^.of  several  persons  who  had  committed  unlaw- 
ful act  admissible iv.  403 

Court  interposing  in  cross-examination iv.  403 

On  cross-examination  r«iuiring  witness  to  explain  omission  in  first 

examination  of  im|)ortant  fact  testified  to  in  second iv.  403 

Of  surgeon  making  post  mortem  that  another  identified  body  to 

prosecutor,  hearsay iv.  417 

Question  of  obscenity  or  indecency  does  not  admit  of  expert  testi- 
mony   iv.  453 

In  prosecution  for  selling  intoxicating  liquors  sccondnry  evidence 

incompetent  to  show  defendant  had  no  permit iv.  485 

Of  witness  contradicted  in  part  not  excluded iv.  532 

Of  social  attentions  paid  by  defendant  in  seduction  to  prosecutrix  not 

Bufllcient  corroboration  of  prosecutrix's  testimony  to  establish  prom- 
ise of  marriage iv.  563 

Contrition  expressed  to  mother  of  prosecutrix  by  accused  in  pros- 
ecution forseduction  uotevidenceof  previous  promise  of  marriage. iv,  66J 
42 


658 


INDEX  TO  VOLS.  I  TO  X. 


EVIDENCE— Conhnwed.  page. 
Withliolding  testimony  by  prosecution  justifies  unfavorable  infer- 
ence  iv.  503 

Statement  of  defendant  made  to  tbird  pereon  not  evidence  of 

promise  of  marriage iv.  503 

Uncommunieated  threats  admissible  undir  what  circumstances,  iv.  494 

Interrogating  prosecutrix  as  to  lier  object  in  going  to  place  where 

rape  was  committed iv.  573 

Admission  of  statement  of  wife  made  in  presence  of  lui&band  as.iv.  5S0 

Foreign  incori)oration  may  be  sliowii  by  indirect iv.  240 

Certified  copies  of  records  of  foreign  countries  not  admissible,  .iv.  240 

Of  identity  of  person  breaking  into  house v.  594 

Of  person  burglarizing  house,  knowing  tliat  tliere  was' money 

therein v.  594 

Of  other  crimes v.  363,  591,  viii.  190 

Defendant's  interest  as  affecting  his v.    30 

Of  motive v.  48,  88 

Corroboration  of,  of  accomplice v.    34 

Explanation  of,  to  show  motive v.    48 

Registered  copy  of  deed  as,  of  ownershi|)  of  proi>erty v.  1(17 

Identifying  person  by  voice v.  315 

Fabricated,  impeaching v.  300 

Establishing  one  of  two  connected  crimes  establiriheii  the  otlicr. .  v.  3()0 

Opinion  as.  uf  intoxication v.  309 

Considering  facts  in,  constituting  part  of  the  res  gesltv v.  400 

Imiieaching  character  of  witness v.  438 

What  are  res  geshe v.  4:;8.  405 

Of  collateral  matters— impeachment v.  450,  vi.  300 

Deposition  read  without  objection v.  455 

Of  good  character  inadmissible  until  assailed v.  459 

Exclusion  of  proper v.  405 

Of  physical  condition  of  deceased  before  .tssault v.  513 

Post  mortem  made  some  time  after  death  not  necessarily  inadmis- 
sible  v.  512 

Of  effect  of  pressure  of  foot  ujwn  neck  subject  of  expert  testi- 
mony  " V.  513 

How  to  frame  hyjiothetical  question v.  513 

. Of  physician  that  he  gave  another  same  kind  of  drug,  proper. .  .v.  517 

Medical  books  not  admissible  as v.  517 

Opinion  as  to  instrument  inflicting  wound v.  512 

. Expert  may  give,  u^wn  statement  of  facts,  not  upon  conclusions  of 

another v.  513 

Cross-examination  of  physician  testifying  as  an  expert v.  517 

Contradictoi-y  statements  of  hostile  witness v.  532 

Pointing  out  locus  of  crime  on  map v.  538 

Of  possession  of  means  to  commit  crime  charged v.  538 

Latitude  of  cross-examination v.  538 

Impeaching  corroborating  testimony v.  538 

Tlieory  of  defendant  testifying  prevails  against  him v.  001 

Of  attempt  to  escape v.  001 

The  competency  of,  is  for  the  court,  the  sulTiciency  for  the  jury .  v.    43 


AMERICAN  CRIMINAL  REPORTS. 


659 


ETIDENCE— Cojifmited.  p 

Of  footprints v.  43,  viii. 

Of  horse-shoe  tracks 


.VI. 

.vi. 

.vi. 

.vi. 

.vi. 
..vi.  21, 

vi. 

vi. 


\GE. 

207 
52 
194 
194 
197 
208 
206 
209 
209 
209 
213 
220 
213 
213 
213 
511 
oil 
221 
401 
486 
525 


Declarations  by  prisoner  to  physician  privileged 

Declarations  narrative  of  a  past  occurrence 

Questions  tending  to  degrade  witness,  liow  far  admissible 

Admissibility  of  confessions 

Husband  and  wife  as  witnesses  against  each  otlier— adultery . , 

Of  non-identity  treated  as  other 

Preponderance  of,  to  establisli  alibi 

Declarations  of  accused  as  part  of  res  gestce 

Of  identity vi 

Note  on,  of  confederate  promised  leniency .  vi. 

Pointing  out  accused vi. 

Of  accused  to  aid  in  arresting  guilty  party vi. 

Of  a  co-defendant,  credibility vi. 

Effect  of  gunshot  wounds,  subject  of  export vi. 

Experiments  to  be  admissible  as vi. 

Of  enticing  away  girl  for  purposes  of  prostitution vi. 

Falsiis  in  una,  falaus  in  omnibus,  confined  to  material  matter,  .vi. 

Of  advice  of  counsel  not  admissible  to  justify  crime v.  140,  vi. 

Of  flight,  concealment vi. 

Impeaching  credibility  of  witness  by  declarations  of   third  per- 
sons  vi.  525 

Defendant  not  allowed  to  prove  cause  or  details  of  diftlculty  with 

deceased vi.  .525 

Note  on  previous  threats vi.  5.34 

Of  acts  and  declarations  of  conspirators vi.  570,  vii.  443,  x.  227 

Likeness  of  child  to  defendant  in  bastardy  case vi.  65,  viii.  297 

Of  defendant's  extravagant  habits  in  embezzlement  ca.se  not  ad- 
missible   vi.  183 

Proving  marriage vi.    17 

Of  other  offenses  when  not  admissible iv.  188,  vi.  183,  ix.  354 

Note  on  when  evidence  of  otlier  offenses  is  inadmissible  iv.  190,  ix. 

354,  ix.  361 

Necessary  in  abduction vi.      1 

In  murder  case  of  threats  against  a  third  person vi.  508 

Of  character  of  .accused vi.  508,  ix.  80,  ix.  705 

Of  character  of  deceased vi.  508 

Proof  of  handwriting vii.  164,  ix.  276 

Note  on  comparison  of  papers  to  prove  handwriting vii.  170 

Inadmissible,  vitiates  verdict vii.  171 

Note  on  admissibility  of  proof  of  declaration  of  bystander. vii.  177 

ix.  454 

Taking  objection  to  inadmissible  evidence  received vii.  171 

Deliberate  admissions  of  accused  admissible vii.  249 

Credibility  of  accused  testifying vii.  338 

Declarations  of  deceased vii.  .S45 

Mode  of  propounding  hypothetical  questions  to  medical  expert. vii.  845 

Quantum  of  proof  when  circumstantial vii.  345 

To  discredit  theory  deceased  committed  suicide vii,  377 


is 


660 


INDEX  TO  VOLS.  I  TO  X. 


EVIDENCE— ConMnucd.  page. 

When  opinion  of  ordinary  witness  admisAible vii.  877 

Demeanor  of  prisoner  as vii.  8*7 

Wooii  workers  as  experts vii.  377 

Scientific  books  as vii.  377 

Cross-examination  of  witness  on  previous  statement vii.  877 

Witness  refreshing  memory  from  mcniornn(]uin vii.  377 

When  two  crimes  are  committed,  of  eaoli  admissible vii.  423 

- —  Against  one  of  several  defendants   jointly  indicted,  admissible 

against  all vii.  443 

Against  some  but  not  against  others  can  not  be  excluded vii.  448 

Of  exclamations  of  bystandera,  hearsay vii.  4i'yi 

Right  to  take  and  use  depositions  as,  is  statutory vii.  453 

Right  of  defendant  to  explain  declarations. . .    vii.  4(13 

Of  ex  parte  post  mortem  admissible vii.  538 

Of  acts  of  third  person  not  shown  to  be  acting  for  defendant,  inad- 
missible  vii.  577 

Court  stenographer  need  not  be  sworn vii.  600 

Reading  testimony  of  absent  witness vii.  600 

Sufficiency  of  objection  to  questions  in  deix)sition vii.  600 

Presuming  identity  of  person  from  identity  of  name vii.  600 

Necessary  to  sustain  indictment  for  abductiun vii.      1 

Sufficiency  of,  of  wife's  infidelity vii.      7 

Corroborating,  of  accomplice vii.    2"» 

Note  on,  required  to  corroborate  accomplice's  testimony vii.    30 

Sufficient  to  prove  ownership  of  express  car ' vii.  100 

Admissibility  of  contents  of  letter  to  establish  bribery vii.  113 

Sufficiency  of,  to  establish  burglary vii.  183 

Note  on,  posaesaion  of  property  as,  in  burglary  case vii.  134 

Of  other  transactions,  admissible  in  forgery  case vii.  193 

Note  on,  evidence  of  other  offenses  generally ...  .vii.  1U8 

Of  other  attempts  in  arson ,  viii.  'J07 

Of  sleigh  tracks vl  CO; 

That  owners  of  property  burned  influenced  their  dauj.'/ii'rf     n  i;  to 

marry  accused,  admissible viii  307 

Admissions  of  defendant  in  bribery  case viii.  388 

Of  juror  accused  by  counsel  for  defendant  of  being  an  accom- 
plice,  admissible viii.  338 

Shorthand  notes,  not  a  deposition viii.  388 

Documentary,  of  offering  bribe viii.  338 

Reading  same  to  jury viii.  888 

Photograph  of  locality  of  crime  as viii.  426 

Of  flight  of  accomplice  not  admissible  viii.  434 

That  accomplice  avoided  arrest,  not  competent  to  prove  alibi. \\\\.  434 

Of  witness  on  former  trial  reduced  to  writing,  must  be  read  to 

him  if  inteiTOgated  thereon  at  subsequent  trial viii.  434 

Declarations  of  deceased  made  a  few  minutes  after  the  affair  in 

absence  of  defendant  not  admissible  :is viii.  514 

Sufficiency  of,  in  manslaughter viii.  521 

Of  names  in  adultery  case viii.    14 

Acts  and  cries  of  mob  admissible  in  homicide  case viii.    19 


AMERICAN  CRIMINAL  REPORTS.  GOl 

EYIDENCE— Conftnt/ed.  _^.,_ 

Declarations  of  co-defendant  in  absence  of  defendant  on  trial,  ad- 
missible   ^.jjj         ju 

Account  given  by  accused  in  perjury  case  out  of  court,  not  ad- 
missible   ^.jjj       Q.,Q 

Policy  of  insurance  as,  in  body  stealing  case viii!  loo 

Of  attorney,  that   accused  employed  him  for  special  purixH  ■. 

admissible ^.jU   005 

Of  non-experts  aa  to  sanity  of  accused viii.  574 

Expert  opinion  as  to  solvency  of  bank,  not  admissible ix.  108 

Judgment  roll  in  divorce  granted,  not  admissible ix.  lao 

Threats  of  third  parties  to  commit  offense  not  admissible ix.    tt3 

Absence  of  witness  who  testified  at  preliminary  examination  does 

not  render  his,  admissible  on  trial ix_  199 

Substance  of  testimony  taken  by  magistrate  admissible ix.  199 

Statement  of  party  as  to  who  mortally  wounded  him  not  admis- 
sible, when ix.  393 

Declarations  and  exclamations  of  decesised  and  defendent  at  time 

of  the  killing  admissible ix.  383 

Note  on,  declarations  of  deceased  admissible  in,  as  part  of  the  res 

gestce ix.  397 

Of  similar  acts  in  lewdness  case ix.  362 

Change  in  accused's  financial  condition  after  the  homicide ix.  377 

Note  on  the  essentials  of  circumstantial  evidence ix.  381 

Note  on  proof,  blood  stains ix.  383 

As  to  character  and  reputation  distinguished ix.  460 

That  witness  testifying  against  accused  was  charged  with  the 

sameoffense,  admissible ix.  536 

Power  of  legislature  to  declare  certain  facts  prima  facie ix.  284 

Journals  of  legislature  as ix.  284 

Note  on  impeaching  dying  declarations ix.  398 

Declarations  of  a  witness  inadmissible ix.  426 

Note  on  sufficiency  of  circumstantial,  to  convict  in  perjury 

case ix.  436 

Note  on  what  considered  res  gestae ix.  454 

Of  former  conviction  of  accused ix.  455 

Facts  not  conclusions ix.  614 

Note  on  corroborative,  required  in  seduction ix.  632 

Note  on  testimony  necessary  to  convict  in  leivdness,  and  admis- 
sibility of  testimony  of  child ix.  364,  365 

-^—  Note  on,  of  reputation,  and  knowledge  of  owner,  admissible  in 

prosecution  for  keeping  disorderly  house ix.  239 

— —  Sufficient  to  sustain  conviction  for  abortion x.    18 

Note  on,  of  good  character  of  accused x.    19 

Remedying  exclusion  of  competent  impeaching  evidence x.    20 

Opinion  of  officer  making  arrest,  not x.    25 

Note  on  cross-examination  of  accused  where  defense  is  alibi — x.    31 

Of  wife  against  husband  in  arson  case  admissible  when  she  is  part 

owner  of  property  burned x.    81 

Note  on,  necessary  to  establish  ownership  in  arson  case x.    36 


662 


INDEX  TO  VOLS.  I  TO  X. 


EVIDENCE— Continued.  paqe. 
Record  of  conviction  of  principal,  of  guilt  of  an  acceasoiy  before 

the  fact X.    4fl 

Weight  of  defendant's  voluntary  admissions. . . . , jc,    46 

Eliciting  tesiimony  from  defendant  retlecting  on  her  moral  char- 
acter improjter x.    40 

Admissible  to  impair  credibility  of  witness  that  she  had  previously 

been  arrested  on  criminal  charge  at  instance  of  defendant x.    57 

As  to  period  of  gestation  in  bastardy  case x.    90 

Effect  of,  that  prosecutrix  in  bastardy  case  had  intercou.-se  with 

one  other  than  defendant  about  the  time  the  child  was  begotten. .  .x.    90 

Note  on  erosa-examination  of  prosecutrix  in  bastardy  case x.    93 

Truthfulness  about  irrelevant  matters  not,  sustaining  the  veracity 

of  accomplice x.    97 

Declarations  of  alleged  owner  of  goods  found  in   possession  of 

accused,  hearsay x.  135 

Denials  made  to  officers  hearsay x.  Kii) 

Contents  of  bill  of  exceptions  admissible  as x.  140 

Admissible  as  to  one  of  two  persons  on  joint  trial  for  murder. .  .x.  108 

Of  reputation  of  house  in  prosecution  for  keeping  a  disorderly 

house,  inadmissible x.  273 

Record  of  coroner's  inquest  not  admissible  against  accused  on 

trial X.  292 

Of   prior  attempt  to   insure  a  third  party  inndniisKihIe  against 

defendant  accused  of  killing  deceased  to  get  insurance  money x.  292 

Communications  by  prosecuting  witness  to  state's  attorney  privi- 

leged X.  290 

Note  on,  of  defendant's  viental  and  emotional  condition  at  time  he 

committed  offense x.  296 

Requisites  of  skilled  witness x.  318 

Note  on  mental  condition  of  accused  at  time  of  examination  as,  of 

his  mental  condition  at  date  of  homicide x.  3i)0 

Note  on  sufficiency  of,  in  a  prosecution  for  sale  of  liquors x.  340 

Telegrams  obtained  by  order  of  court,  proper x,  347 

As  to  locality  of  place  of  homicide x.  347 

By  the  state  as  to  defendant's  reputation  for  chastity  in  prosecu- 
tion for  keeping  house  of  ill-fame,  is  inadmissible  where  no  evidence 

for  defendant  is  offered x.  427 

Sufficiency  of,  to  establish  justifiable  homicide x.  4G3 

That  a  father  committed  rape  upon  a  daughter  other  than  the  one 

who  is  prosecutrix  in  the  case  on  trial  inadmissible x.  489 

-^—  Note  on  what  constitutes  liearsay,  in  a  rape  case x.  4!)3 

Weight  of,  as  affecting  correctness  of  verdict  not  reviewable. .  .x.  499 

Insufficiency  of,  to  support  verdict  of  conviction x.  499 

Absence  of,  of  motive  a  circumstance  favorable  to  defendant. .  .x.  499 

That  a  witness  is  a  practicing  physician  and  surgeon  qualifies 

him  to  give  an  opinion  as  to  the  means  used  to  produce  death x.  499 

Using  a  dressmaker's  frame  in  exhibiting  clothing  of  murdered 

woman  not  prejudicial  to  defendant x.  499 

Witness  has  right  to  be  protected  from  irrelevant,  improper  or 

insulting  questions x.  499 


AMERICAN  CRIMINAL  REPORTS.  (JGS 

EVIDENCE.— Con^mMcd. 

PAGE, 

Photograph,  of  person  alleged  to  have  beon  mmdorod,  ns x   409 

Where  witness  testifies  in  apparent  variance  to  liis  fornVer  testi- 
mony not  improper  to  call  liis  attention  to  tlie  latter x.  409 

A  hypothetical  question  must  be  based  on  facts  in,  but  need  liot 

embrace  all  the  facts  shown,  nor  be  limited  to  such  facts x.  409 

An  opinion  according  with  common  knowledge  or  experience 

admissible ^    ,„„ 

Defendant  may  be  asked  if  he  had  not  prepared  a  statement  which 

he  sealed  and  delivered  to  his  attorneys  with  certain  instructions  as 
to  opening  it ^    ^gg 

Where  a  question  is  admitted  over  the  objection  of  the  defendant, 

unless  he  moves  to  strike  out  the  answer  tliereto  he  will  be  presumed 
to  have  been  satisfied  to  allow  it  to  remain x,  449 

In  determining  whether  the  proper  foundation  was  laid  for  the 

admission  of,  offered  as  a  confession  the  reviewing  court  is  not  con- 
cerned as  to  how  far  the  evidence  tends  to  prove  guilt x.  547 

Doctrine  of  the  inadmissibility  of  involuntary  confessions x.  547 

What  is  necessary  to  render  a  statement  offered  as  a  confession 

admissible  as, x.  547 

—  The  fact  that  a  statement  was  made  by  accused  while  imprisoned 
to  a  police  olticer  is  a  circumstance  to  be  taken  into  account  in  deter- 
mining whether  or  not  such  statement  is  admissible  in,  as  a  voluntary 
confession x.  547 

Where,  is  purely  circumstantial  it  is  proper  for  prosecution  to  show 

that  a  person  who  was  in  the  vicinity  of  the  killing  could  not  have 
committed  the  crime x.  547 

A  (juestion  asked  of  a  medical  expert  which  assumed  state  of  facts 

warranted  by  proofs,  proper x.  547 

Burden  is  on  defendant  setting  up  insanity  as  a  defense  to  prove 

it X.  585 

See  Note x.  GOl 

Tending  to  entohliiih  the  inmnity  of  accused  casts  the  burden  on 

the in'osectition  to  prove hissnnity x.  605 

Tending  to  show  insanity  of  (wcnsed  must  be  sufficient  to  create  a 

reasonable  doubt  as  to  his  sanity  to  shift  burden  of  proof  upon  the 
prosecution x.  600 

As  to  domestic  trouble  of  defendant  not  sufficient  to  raise  reason- 
able doubt  as  to  his  sanity  x.  606 

Of  defendant's  acts,  conduct  and  declarations  subsequent  to  the 

fourth  day  after  the  homicide  showing  the  continuance  of  his  con- 
dition the  same  as  immediatelj'  before  the  homicide,  offered  on  the 
question  of  his  insanity  at  the  time  of  the  killing  is  admissible x,  606 

Testimony  that  a  man  suffering  from  delirium  tremens  has  no 

more  control  over  his  actions  in  that  respect  than  a  man  suffering 
from  delirium  produced  from  any  other  cause  but  is  still  sane,  is 
inadmissible x.  606 

It  is  not  error  to  overrule  an  objection  to  a  question  the  answer  to 

which  may  be  relevant,  though,  when  given,  it  proves  not  to  be x.  499 

A  hypothetical  question  may  be  addressed  to  any  reasonable  theory 

which  may  be  drawn  from  the  facts  developed  by  the  evidence. .  .x.  499 


66^ 


INDEX  TO  VOLS.  I  TO  X. 


/ 


EVIDENCE— Conh'jiMed.  page. 

Where  a  witness  for  the  prosecution  in  n  trial  teatifled  that  ho 

fitted  certain  tools,  found  apparently  in  the  iHisHeusioii  of  another  than 
the  defendant,  in  markson  a  door,  which  they  did  not  lit,  after  which 
defendant  introduced  the  tools  in,  it  wuspropitr  to  permit  prosecution 
to  introduce  the  door  on  retnittal x.  400 

The  use  by  a  district  attorney,  in  argument,  of  an  empty  box,  to 

illustrate  the  quantity  of  gas  which  could  leak  in  a  given  time  and 
under  cimunistances  testified  to,  was  not  error  prejudicial  to  thtt  de- 
fendant; the  jury  being  cautioned  by  both  the  attorney  and  the  court 
that  the  box  was  not  in  evidence x.  400 

To  render  a  statement  offered  as  a  confession  admiHsible  in,  the 

rule  is  that  the  proof  must  establish  that  the  making  vf.  the  statement 
was  voluntary x.  547 

Statements  made  to  a  police  officer  in  his  office,  no  other  persons 

being  present,  after  the  prisoner  had  been  stripped  of  hisclotlung  and 
after  he  had  been  told  by  the  officer  tliat  a  co-suspect  had  stated  that 
he  saw  prisoner  commit  the  deed  and  that  the  officer  was  satisfied 
that  the  prisoner  killed  deceased,  inadmissible x.  647 

Res  gestae,  conversation  between  prosecutrix  and  a  friend  regard- 
ing the  offense  five  months  after  its  commission  not.  Note x.  403 

Erroneous  although  not  prejudicial,  may  be  rendered  bo  by  re- 
marks of  prosecutor.  Note x.  408 

Other  forgeries,  reversible  error  to  show  that  other  forged  checks 

were  found  in  defendants'  possession.  Note x.  418 

Confession  by  accused  of  a  crime  other  than  that  charged,  may 

when  inseparable  from  competent  confession  be  given  to  jury,  Note.x.  220 

That  fi;,tlier  admitted  he  had  committed  a  rape  upon    anotlier 

daughter  ( rror x.  480 

Error  to  exclude  offered  for  several  purposes,  if  comjietent  for  one 

of  them X.    20 

Tliat  witness  saw  defendant  after  his  arrest  and  recognized  him  as 

tlie  one  whom  ho  saw  commit  the  offense  competent x.    67 

Abandonment,  on  trial  of  husband  for,  of  wife,  after  evidence  of 

misconduct  respecting  her  marri.ige  duties,  decrees  of  separate  main- 
tenance and  divorce  admissible  in  rebuttal ix.      1 

When  and  under  what  circumstances  wife  may  bo  a  competent 

witness  against  her  husband.  Note ix.      8 

Abduction,  the  fact  tliat  the  parties  subse<iuently  had  sexual  inter- 
course evidence  of  intent ix.      7 

Abortion,  accomplice,  woman  who  voluntarily  participates  with 

another  person  who  used  instrument  upon  her  an  accomplice,  Note.ix.    49 

EXPERT  WITNESS. 

Physician  can  not  be  compelled  to  testily  as,  without  proper  com- 
pensation  ii.  187 

Can  not  be  examined  upon  theories  contrary  to  uncontradicted 

facts  of  the  cose iv.  357 

Proper  function  of iv.  ;J79 

Opinion  of,  when  admissible iv.  870.  45!] 

Question  of  obscenity  or  indecency,  not  a  question  for iv.  453 


PAGE. 

mt  l)u 
■1-  than 
which 
cutioii 
....X.  409 

K)X,  to 

10  nnd 
;h(!  <le- 
}  court 
....X.  409 
in,  the 
X'lnent 

X.  547 

•crsonH 
11^  und 
>d  tluit 
itiHfied 
....X.  647 
egiird- 

X.  403 

by  re- 

X.  408 

checks 
..   .X.  418 
[I.  may 
\'ule.x.  226 
notlier 

...X.  489 
or  one 

X. 

lim  as 

X. 

nee  of 
niuin- 

ix. 
)etent 

.ix. 
intor- 

ix. 
with 
)te.ix. 


20 
67 

1 
8 

7 
49 


com- 

.ii.  187 

lictfd 

,.iv.  iJ.-)? 

,.iv.  ;J79 

879.  45:3 

,.iv.  453 


AMEUICAN  CRIMINAL  REPORTS.  605 

EXPERT  WITNESS-Confmued.  paqe. 

CruHS-examination  o',  as  to  arsenical  poison v.  517 

Note  on  qualijlcatiou  i./  medical vii.  864 

Need  not  be  a  profiasi.Mal  expert  in  proving  liandwriting  by  com- 
parison  ix.  276 

——  In  seduction  case i,  (j(jo 

EXTORTION. 

By  municipal  offlcjcra iii.    (jg 

JuMtice  demanding  illegal  fees v.  215 

Indictment  against  officer  for ix.  205 

By  incumbent  under  unconstitutional  statute ix.  297 

EXTRADITION. 

Governor  of  state  surrendering  fugitive  from  another  state. i.  169 

Arrest  of  fugitive  from  justice i.  169 

Constitutionality  of  law  concerning  fugitives  from  justice i,  169 

Defendant  after  acquittal  on  the  charge  for  which  he  was  extra- 
dited must  be  given  reasonable  time  to  return  to  state  extradited  from 

before  ho  could  be  arrested  on  another  charge ii.  201 

Arrest  and  detention  of  fugitive  before  reiiuisition ii.  215 

Note  on  extraditing  a  man  vn  one  charge  und  then  trying  him  on 

another ii.  213 

Prisoner  only  triable  for  offense  for  which  extradited,  .iv.  203,  vi.  223 

Plea  to  jurisdiction iv.  211 

Regularity  of  arrest  on  requisition  can  not  be  questioned iv.  211 

Fugitive  from  justice  has  no  asylum  in  a  foreign  country iv.  311 

Of  fugitives  depends  on  treaty iv.  211 

Arrest  of  fugitive  not  reviewable  on  habeas  corpus iv.  588 

Of  fugitive  under  federal  statute v.  218 

Res|K)nsibility  in  case  of,  rests  with  governor v.  218 

Court's  iK)wer  to  review  action  of  governor  on  habeas  corpus. .  .v.  218 

Apart  from  treaties,  of  fugitives  not  retiuired vi.  223 

Of  fugitive  from  foreign  country,  matter  for  federal  negotia- 
tion  vi.  223 

Release  of  fugitive  extradited  on  defective  papers viii.  236 

Habeas  corpus  and  writ  of  error  in,  case  distinguished viii.  341 

Depositions  not  admissible  in,  case viii.  341 

Crimes  not  enumerated  in  treaty  extraditable ix.  803 

Setting  aside  indictment  does  not  work  acquittal ix.  303 

Note  on  trial  for  crime  not  en  umeraled  in  treaty ix.  309 

Note  on  proanring  arrest  by  fraud ix.  310 

Note,  extradition  and  rendition  distinguished ix.  810 

Trying  prisoner  on  charge  other  than  the  one  on  which  extra- 
dited  ^-    ^•'5 

Authority  of  state  governor  entirely  statutory x.  297 

State  may  provide  for.  of  one  not  a  fu.<;itive  from  justice x.  297 

Note  on  power  of  state  to  surrender  fugitive x.  307 

Sufficiency  of  warrant  in  case ^li.  213 

Recital  in  warrant— affidavit vii.  213 

Warrant  need  not  show  a  crime  by  law  of  demanding  state.  ..vii.  213 


iCfiO 


INDEX  TO  V0L9. 1  TO  X. 


VOR. 

211 

ail 

2m 
ail 

ai8 
218 
218 
218 
225 

83 


FALSE  PRETENSES.  r 

Prt'tonno  timt  horso  wns  nound,  known  to  bo  unsound i. 

Indictment  for.  in  Hoiling  a  mortgage i. 

Intent  to  dof mud i. 

Sullh!U'ni;y  of  indictment i.  211,  218,  iv. 

liciircsentiitionr^  of  f uturu  oventH,  not i. 

Obtaining  note  by i. 

— —  Falne  token i. 

Indictment  for,  niunt  alUv^e  proHeciitor  relioil  on  tliem  aH  true. .  .i. 

(Jontriict  entered  into  by  ulieged,  nuHt  beset  out  in  indictment,  .i. 

Indictment  must  allege  respondent  '•  knowingly  "  made  tbe i. 

No  convi(;tion  for,  can  l)e  bad  wbero  tbe  transaction  would  bavo 

been  unlawful  in  case  respondent's  representations  bad  been  true.  .11. 

In   obtaining   property    not   committed    unless  resiH)ndent  gets 

title ii.  100 

Wbat  constitutes  offense  of  obtaining  g<MKls  by 11.  228 

A  pretense  false  wlien  made,  but  true  wJien  prosecutor  parts  witli 

his  property  is  not,  witbin  the  statute 11.  228 

Must  relate  to  a  past  event  or  present  existing  fact ii.  228,  Iv.  2:iO 

Representing  mortgaged  property  as  unincumlM!red.  not ii.  l()i> 

Statements  as  to  valueor  location  of  lots  are  matters  of  opinion  ii.  103 

SufHciency  of  in<lictmont  for  obtaining  goods  by  ii.  8.1,  iii.  08.  vlll.  249 

Rwiuisitea    of    information    for  false    pretenses   in   obtaining 

money 11.  102 

Material  and  inmiaterial    false  representations  must  be  distin- 
guished in  charge li. 

"  Person  "  includes  artificial  as  well  as  natural  persons 11. 

Offense  committed   in  county  where   prosecutor  parts    with  bis 


.ii.  8.">,  vi 


goods 

Sote  on  false  representntiotia  an  to  financial  reHponnUnlU ij . . .  .11. 

Note  on  distinction  Itetween,  and  larceny  by  trick ii. 

Note  on  what  constitutes • ii.  100. 

And  larceny  distinguished 11. 

False  statements  as  to  one's  debts  and  dealings  witli  v>thers  are.  ill. 

One  obtaining  goofls  at  different  times  under  contract  induced  by 

false  statements  obtains  them  each  time  not  under  the  contract  but 

by  means  of '. ill. 

Need  not  be  the  sole  inducement ili, 

Need   not  be  such  as  would  have  deceive!  a  man  of  ordinary 

prudence Ill 

Including  true  statements,  are  within  the  statute iii.  02,  ix. 

- —  One  inducing  another  by,  to  pay  more  than  the  debt  due  is  guilty 

of  obtaining  only  the  excess  under ill. 

Intentional  deception  as  to  nature  of  goods iii. 

Intent  to  defraud  must  exist  at  time  of  transaction ili. 

Note  on  intent  to  defrandnot  required  to  complete  the  offense.  ..ill. 

Allegations  of  indictment  for,  must  be  proved  as  laid iii. 

The  statement  that  the  prisoner  by  means  of  thef<dse  prefi'iisrs 

obtained  the  money,  is  sufficient  allegation  in  indictment  for  obtaining!; 

money  by, iii. 


103 

85 

259 

95 

103 

243 

96 

93 


93 
93 

93 
705 

100 
444 

85 
91 

85 


100 


AMERICAN  CRIMINAL  REPORTS.  007 

FALSE  PRETENSES-CoHfjHMrri.  p^^j.^ 

DeHcription  of  money  ol>tnlni'«l  by,  in  itnlictment iii.  loo 

Note  on  form  of  indictnwnt  for "     jjj    J2| 

Humciency  of  indictiuent  for  obtninlnj;  Roodw  un(.'er  false  pn«- 

tensea JH     gg 

Adiniusibllity  as  evidence  of  undulivured  letters  addresHed  to  pris- 

o"'""" iii.  483 

Letter  by  prisoner  containing  false  reijresentntions  as  to  his  busi- 

ness  and  ability  to  pay iij   ^^jg 

Distinction  l)et\veen,  and  constriictivo  larceny jy.  !>ao 

One  selling  landH  known  to  be  niortyaj,';.-!!  us  unincumbered  is  guilty 

o' iv.  2n4 

Place  of  trial ; iv.  501 

Party  signing  anotber's  name  with  authority  is  not  indictable  for 

obtaining  mtiney  under, ,  v.  234 

A  conspiracy  to  obtain  goods  by,  is  a  misdemeanor v.  127 

Failure  of  buyer  of  lot  to  examine  record  of  title  will  not  prevent 

conviction  of  him  who  sold  the  lot  as  his  own v.  127 

Frauilulent  intent  not  necessarily  shown  by  false  representations  vi.  249 

Swindling  and  theft vi.  253 

A  pica  of  former  acipiittal  for  stealing  certain  cattle  can  not  he 

plead  to  indi(!tment  for  obtaining  property  under,  by  trading  the  same 

cattle  to  which  accused  had  no  title vi.  253 

Indictment  for  obtaining  goods  from  a  firm  need  not  set  out  nanu^ 

of  members  of  firm vi.  256 

Indictment  must  allege  manner  in  which  gooils  were  parted  with 

and  obtained vi.  250 

What  constitutes  an  indictment   for vii.  179 

And  promise  made  together vii.  179 

SeeiVo/e  vii.  183;  ix.  284 

Names  of  persona  cheated  must  be  set  out  in  indictment vii.  184 

Description  of  the  trick  or  device  must  be  fully  set  out vii.  184 

Obtaining  property  by  stealth  or  fraud  is vii.  328 

One  obtaining  money  of  another  by  pretending  to  be  a  witch 

doctor,  not  guilty  of  obtaining  money  under viii.  259 

Rei)resentations  must  bo  such  as  to  deceive  a  man  of  common 

understanding viii.  259 

Indictment  must  charge  intent  "  to  injure  or  defraud  " viii.  225 

Circumstances  tending  to  show  guilty  knowledge viii.  225 

Sufllciency  of  evidence viii.  249 

Instructions viii.  249 

Fraudulent  advertisement ix.  2TC:  x.  318 

Note  on  tchat  are  indictable ix.  283 

A'ofc  on  venue  of  offense ix.  408 

Cheating  and  swindling  committed  by  representations  of  a  i)ast 

fact  though  coupled  with  a  promise ix.  158 

See  Note ix.  161 

Variance  between  indictment  and  charge x.  313 

Necessary  averments  in  indictment  for,  by  means  of  fraudulent 

advertisement x.  318 


11 

i 

i 

■608 


INDEX  TO  VOLS.  I  TO  X. 


FELONY  AND  MISDEMEANOR.  page. 

Converting  money  received  from  a  city  treasurer  a  felony v,    10 

' Grade  of  oflFense  determined  by  punishment  v.     10 

Slander  a  felony v.  631 

— ^  Right  of  legislature  to  provide  alternative  i)unishments  in  felony 
cades v.    63 

iflGHTING. 

Persons,  by  mutual  agreement  each  guilty  of  assjiult  and  battery 
on  the  other i.    SQ 

FINE  AND  IMPRISONMENT. 

Imprisonment  for  fine iv.  236 

No  imprisonment  for  costs iv.  236 

Where  alternative  punishments  are  prescribed,  jury  m.av  fix  oiu- 

or  both iv.  238 

Fine  can  not  be  assessed  on  general  verdict iv.  238 

FORGERY. 

Note  on  what  is  subject  of  forgery x.  418 

Obtaining  money  by  forged  telegram x.  403 

General  letter  of  introduction  not  subject  of i.  225 

Imperfect  check  not  subject  of i.  227 

— ^  Indictment  for,  must  allege  who  wjus  intended  to  be  defrauded,  .i.  227 
— —  Variance  between  name  set  forth  in  indictment  for,  of  note  and 

name  signed  to  note,  fatal i.  228,  vii.  191 

"  Tenor  "  compels  strict  accurivcy  in  pleudinj; j.  228 

Requiring  prosecutor  to  elect  within  discretion  of  court. i.  230 

Presumption  of  forgery  from  proof  of  utteriii;.? i.  230 

False  making  of  a  Vmnk  check  is ii.  149 

An  instrument  which  would,  if  genuine,  create  a  liability,  is  a 

subject  of ii.  149 

Due  bill  subject  of ii.  141 

Order  for  go.ids  subject  of ii.  153 

"  Value "  means  "  effect,"  "  import" ii.  153 

Absence  of  defendant  when,  was  committed  works  accpiittal. .  .ii.  153 

By  uning  innocent  agent ii.  146 

"And  notice  of  protest,"  set  forth  in  indictment  as  appearing  in 

note,  not  being  in  note,  a  fatal  variance,  excluding  the  note  as  evi- 
dence  ii.  138 

— ^  Intent  to  defraud  necessary iii.  125 

—  Invalid  indtruraent  may  be  subject  of iii.  123 

Note  on  validity  of  instrument  reqniiti'e  to  make  it  a  subject  of  .iii.  125 

.— ^  Description  of  forged  note,  when  in  possession  of  defendan' .  need 

not  be  exact iii.  133 

Direct  question  as  to  whether  instrument  in  question  is  a  forgery, 

improper iii.  143 

Scienter  must  be  alleged iv.  246 

—  In,  case  existence  of  foreign  corporation  may  be  shown  by  indirect 
evidence iv.  240 

Making  and  engraving  an  unfinished  plate  upon  which  to  print 

bank  notes  is iv.  240 


AMERICAN  CRIMINAL  REPORTS.  669 

FORGERY— Conhnwed.  p^qj. 

Not  necessary  to  allege  intent  to  defraud iv,  240 

Brevity  and  uncertainty  of  for<i;ed  instrument  no  bar  to  convic- 
tion  iv.  579 

Any  writing  obligatoiy,  promising  to  pay  money,  is  subject  of  .v.  238 

Indictment  must  show  instrument  has  some  legal  etfect v.  238 

Charge  of,  may  be  based  upon  resemblance  of  forged  to  genuine 

instrument y   238 

Proved,  though  it  appears  that  defendant  intended  to  defraud  one 

other  than  he  whose  name  was  forged vi.  266 

Indictment  need  not  allege  name  of  pei-son  to  whom  forged  instru- 
ment was  uttered yi   359 

Information  charging,  of  title  deed  need  not  set  out  name  of  per- 
son intended  to  be  defrauded,  nor  in  wliat  the,  consisted vi  272 

Count  in  information  charging,  and  uttering  forged  instrument, 

bad  for  duplicity vi.  272 

Indictment  alleging,  of  name  of  deceased  person  should  charge 

intent  to  defraud  his  estate vii.  188 

Indictment  for  forging  application  for  insurance  policy  must  aver 

that  the  policy  was  a  writingof  value vii.  191 

Evidence  of  other  transactions  admissible vii.  193 

Note  on  possession  of  otiier  forged  writings vii.  198 

Requisites  of  indictment  for  forging  and  uttering  a  receipted  bill 

for  goods vii.  198 

An  instrument  or  writing  g(X)d  on  its  face,  made  out  with  in- 
tent to  defraud  is  a,  although  inquiry  into  matters  not  appearing  on 
its  face  would  show  it  to  be  invalid viii.  261 

Faibo  proofs  of  death  made  out  on  blanks  like  those  used  by  the  in- 
surance company  constitute viii.  261 

— ^  Signing  name  of  another  to  an  order  for  groceries  is  a, viii.  279 

Recording  fovged  release  of  a  mortgage,  constitutes  the  uttering 

of  a  forged  instrument viii.  283 

The  morigagee,  notary  and  witnesses,  whose  names  appear  upon 

a  forged  release  are  necessary  witnesses viii.  283 

Evidence  of  payment  of  interest  after  release  was  forged,  im- 
proper   viii.  283 

——  Evidence  that  defendant  mortgaged  more  land  after  release  was 
recorded,  proper  to  show  motive viii.  283 

— -  It  is  not  necessary  to  prove  the  corpjis  delicti  before  proving  ad- 
missions of  defendant,  as  the  corpus  delicti  depended  upon  acts  and 
intent  of  defendant viii.  283 

—  Indictment  for,  of  a  bank  check  describing  it  as  a  bill  of  exchange 
will  not  sustain  a  conviction  under  Georgia  Penal  Code ix.  299 

Mailing  forged  instrument  in  one  county,  and  the  receipt  thereof 

in  another   county  does    not  constitute  an   uttering  in   the   first 
county ix.  743 

Note  on  what  constitutes  tlie  offense  of  uttering  and  publishing  of 

a  forged  instrument ix.  301 

Note  on  what  writings  are  subjects  of  forgery ix.  803 


C70 


INDEX  TO  VOLS.  I  TO  X. 


FORXICATION.  paoe. 
State  statuto  punishing  witli  greater  severity,  between  persons  of 
different  races  than  between  pei-sons  of  same  race   not  unconsti- 
tutional   ii.  161 

Prosecution  must  prove  respondents  unmarried ii.  159 

An    indictment  founded  upon  a  statute    punisliing  "  open  and 

notorious  fornication "'  is  good,  although  the  statute  does  not  define 

the  crime '. ii.  165 

Territorial  courts  have  no  jurisdiction  to  grant  divorce  for,  be- 
tween residents  and  citizens  of  one  of  the  states ii.  165 

And  adultery  at  common  law  distinguislied ii.  165 

A  man  'procuring  a  divorce,  void  for  want  of  jurisdiction,  who 

marries  and  openly  cohabits  with  another  woman  is  guilty  of ii.  165 

Conviction  for,  sustained  under  indictment  for  seduction iv.  563 

Single  state  of  complainant  will  be  presumed  until  testimony  to 

the  contrary  is  offered viii.  297 

In  trial  for,  resemblance  between  putative  father  and  illegitimate 

child  for  the  jurj' viii.  297 

FORMER  ACQUITTAL. 

In  one  county  no  bar  to  indictment  for  the  same  offense  in  another 

county  when iv.  338 

To  be  a  bar  nmst  have  been  in  respect  to  the  same  identical  offense, 

and  the  plea  must  so  show iv.  3.38 

Plea  of,  defective  when iv.  338 

A  plea  of,  to  an  indictment  containing  several  counts  is  bad  on  de- 
demurrer  if  it  fails  to  answer  any  one  count iv.  338 

FRAUDULENT  SALE  OF  MORTOAGEl)  PROPERTY. 

Refiuisities  of  indictment  for v.  243,  245 

Copy  of  mortgage  attached  to  indictment  for,  is  part  of  the   in- 
dictment  V.  242 

Averment  of  ownership  not  necessary  in  indictment  for v.  243 

A  growing  crop  of  grain  is  personal  property  within  this  statute,  .v.  243 

GAME  LAWS. 

State,  providing  that  no  person  shall  sell  or  expose  for  sale,  or  have 
in  possession  any  of  certain  birds  during  the  prescribed  term,  do  not 
prohibit  the  having  in  possession  and  e.xixjsing  for  sale  any  of  such 
birds  killed  in  another  state viii.  303 

GAMING. 

Chips  and  checks  redeemable  in  money  are  things  of  value i.  2J3 

The  owner  of  a  billiard  table  used  by  players  on  tlu-  understanding 

that  the  loser  pays  for  the  game  is  .a  keeper  of  a,  house i.  234 

Betting  upon  the  result  of  an  election  is  not  gaming i.  233 

Burden  on  state ,  in  prosecution  for  permitting  ndnor  to  gamble, 

to  show  non-consent  of  minor's  parents i.  237 

Sufficiency  of  indictment  for i.  240 

Consists  in  keeping  or  dealing  or  permitting,  etc.,  any  game  of 

chance  with  cards  for  money iii.  318 

Managers  of  incorp  irated  social  club  permitting  gaming  on  its 

premises  are  guilty  of  keeping  a,  house iii.  137 


AMERICAN  CRIMINAL  REPORTS.  Q^i 

GAMING-Con/tntted.  p^^^^ 

Proof  of  dealing  a  single  game  of  faro  or  any  other  banking  game 

for  money,  is  sufficient  to  support  a  conviction  for  being  a  common 

gambler iii   jgg 

Navigable  stream  not  a  highway  within  the  statute  against. . .  .iv.  249 

A  ferry  boat  is  a  "  public  place"  within  the  statute  against iv.  249 

The  courts  of  either  county  have  jurisdiction  of  the  off  ense  of  gam- 
ing committed  on  board  a  ferry  boat  anchored  in  tlie  middle  of  a 

river  dividing  two  counties iy_  249 

Indictment  for  recovery  of  penalty  for,  need  not  disclose  prosecut- 
or's name vi.  284 

Lottery — Indictment vi.  284 

Advertising  lottery vi.  284 

Selling  lottery  tickets vi.  284 

Words  "then  and  there"  in  indictment  for,  not  necessary vii.  217 

Note  on  what  is  a  gaming  table  and  who  is  a  keeper vii.  219 

Note  on  what  is  an  inn,  within  the  meaning  of  the  statute 

against vii.  220 

One  temporarily  in  charge  of  a  room  used  for,  may  be  convicted 

of  keeping  a,  house vii.  217 

Ordinary  playing  cards  not  a  gambling  device viii.  313 

Proprietor  who  gives  out  cards  and  sells  chips  to  patrons  who  call 

for  same  for  the  purpose  of  playing  seven  up,  etc.,  witli  each  other  in 
the  bar-room,  although  he  takes  no  part  in  the  games  played,  is  the 

keeper  of  a,  house viii.  313 

With  cards  is  a  misdemeanor viii.  321 

Defined viii.  321 

Betting  on  horse  racing  is viii.  321 

"  Boards  and  lists  "  descriptive  of  horse  races  are  not  devices.. viii.  321 

Dealer  of  stud-poker  is  an  accomplice  with  tliose  who  bet  money  at 

such  game viii.  326 

Indictment  for  playing  stud-poker  need  not  set  out  names  of  others 

who  bet  at  the  same  game viii.  326 

Conviction  for  keeping  common,  house  not  sustained  by  indictment 

charging  keeping  a  disorderly  house,  which  fails  to  include,  among 

the  causes  of  disorder ix.  235 

One  who  operates  for  another  at  a  fixed  salary  any  device  whereby 

money  is  won  or  lost,  is  an  accessory x.  419 

Note  on  u'hat  constitutesa,  house x.  421 

GOOD  FAITH. 

Acting  in,  under  advice  of  magistrate  does  not  avail  on  a  trial  for 

adultery i.    43 

Employer  not  criminally  liable  for  illegal  sale  of  liquors  by  em- 
ploye made  contraiy  to  instructions  given  to  him  in i.  468 

GRAND  JURY. 

That  one  of  the  grand  jurors  was  an  alien,  a  good  special  plea  to 

indictment i-  543 

Special  plea  to  indictment  based  on  oath  of  witness  before i.  543 

Grand  juror  as  u  witness »•  808 


1  -WW!'"^^          1 

f 

} 

» 

G72 


INDEX  TO  VOLS.  I  TO  X. 


GRAND  JVRY— Continued.  page. 

Intoxication  of  one  or  more  grand  jurors  not  ground  for  abating 

or  quashing  indictment iv.  253 

Not  under  control  of  court iv.  253 

Member  can  not  be  compelled  to  disclose  how  he  or  any  other 

juror  voted  upon  an  indictment iv.  523 

Subject  to  call  by  district  judge  in  Nebraska v.    45 

Authority  to  require,  summoned  from  bystanders  repealed  by  im- 
plication (Nebraska) vi.    45 

—^  Indictment  found  by,  drawn  for  one  year  valid  during  term  of 

court  extending  from  that  year  into  the  next vi.  288 

See  Note vi.  290 

A,  having  been  discharged  because  illegally  drawn,  and  a  second 

impaneled,  party  indicted  by  the  latter  can  not  move  to  quash  indict- 
ment because  the  former  wan  improperly  discharged vi.  269 

Objection  to  organization  of vi.    33 

Irregularity  in  selection  of vi.  307 

Presence  of  unauthorized  person  before,  must  be  taken  advantage 

of  by  motion  to  quash  before  trial,  or  by  motion  in  arrest  of  judg- 
ment after  verdict vi.  511 

Indictment  not  invalidated  by  omission  of  word  "  foreman"  when 

signed  by  one  shown  by  the  record  to  have  been  foreman vi.  296 

Requisites  of  plea  in  abatement  to  drawing  of vii.  220 

To  competency  of vii.  220 

Such  pleas  are  not  favored '. vii.  220 

Grand  juror  can  not  refuse  to  testify  as  to  what  witnesses  were 

examined  before  the vii.  324 

One  of  the  grand  jurors  who  had  found  an  indictment,  held  free 

from  bias  although  he  had  talked  of  lynching  defendant viii.  829 

Number  necessary  to  indict  in  Iowa viii.  329 

Disqualification  by  formation  of  previous  opinion viii.  338 

Scope  of  inquiry  of viii.  338 

Obligation  of  secrecy  for  protection  of  grand  jurors,  not  witnesses 

viii.  338 

Presence  of  prosecuting  attorney  during  their  investigations,  can 

not  be  proven  by  members  of ix.      7 

Statements  of  prosecuting  attorney  as  to  what  occurred  in  grand 

jury  room  inadmissible ix.      7 

Power  of  court  to  postpone  sitting  of v.  256 

—  The,  under  the  New  York  Code v.  247 

Power  of  court  to  discharge,  adjourn  the  term,  and  order  a  new 

venire x.  423 

New  venire  how  drawn , x.  423 

Note  on  identity  of  case  being  disproved  by  grand  juror x.  437 

GROWING  CROPS. 

Are  personal  property v.  343 

GUILTY  KNOWLEDGE. 

May  be  proved  by  circumstantial  evidence i.    91 


AMERICAN  CRIMINAL  REPORTS.  673 

HABEAS  CORPUS.  p^^^ 

State  courts  have  no  authority  to  release  prisoner  upon,  under  sen- 
tence of  federal  tribunal j   041 

Writ  of  error  to  an  order  refusing  discharge  on,  will  not  be  dis- 
missed when, .    Kna 

Release  on,  of  prisoner  confined  under  illegal  sentence ..i  5o-l 

Note  on  discharging  prisoner  confined  under  illegal  sentence. . . .  .i.  557 

Discharge  on,  a  judgment  final  and  conclusive ii.  217 

Supreme  court  no  power  to  re-examine  grounds  of  discharge. .  .ii.  217 

Party  indicted  for  murder  entitled  to  a  writ  of,  for  purpose  of 

showing  facts  that  may  entitle  him  to  bail ii.  250 

Indictment  not  conclusive  upon  application  for,  as  to  character  of 

testimony ii   ^.^o 

'''-ourt  issuing  writ  of,  may  summon  prosecuting  witness ii.  228 

Where  court  upon,  investigating  charge  of  obtaining  money  under 

false  pretenses,  prosecutor  may  testify  that  he  believed  the  pre- 
tenses   ii.  228 

Will  be  denied  if  facts  stated  in  petition  do  not  warrant  discharge 

of  prisoner ii_  342 

Functions  of  writ ii.  242 

Insufficiency  of  information  not  ground  for  issuance  of  writ ii.  243 

Note  on  hoto  far  a  decision  on  a  torit  of,  is  to  be  regarded  as  res 

adjudicata ii,  226 

Where  petitioner  is  confined  under  judgment  of  court  without  jur- 
isdiction  iv.  254 

Lies  where  one  is  sentenced  for  lesser  offense  upon  same  verdict 

after  reversal  of  former  judgment iv.  254 

Circuit  court  of  United  States  only  issue,  when iv.    16 

When  federal  courts  have  no  jurisdiction  to  discharge  prisoner 

held  under  state  statute iv.    16 

Reviewing  power  of  the  United  States  supreme  court  in  a  criminal 

case  on, iv.  283 

Inquiry  in ,  limited  to  the  validity  of  the  judgment i v,  446 

Court  has  no  power  to  review  decision  of  magistrate  on  ground  it 

is  contrary  to  weight  of  evidence iv.  388 

Prisoner  held  imder  illegal  commitment  entitled  to  release  on,  .v.  269 

Rights  of  relator  not  dependent  upon  officer's  return v.  269 

Court  fixing  punishment  in  homicide  case  entitles  prisoner  to 

release  on v.  273 

Note  on,  when  and  under  what  circumstances  a  party  be  restored 

to  liberty  by , v.  277 

Erroneous  judgment  of  court  having  jurisdiction  can  not  be  collat- 
erally assailed  on v.  273 

Prisoner  convicted  on  indictment  amended  by  court  or  prosecutor 

entitled  to  discharge  by vi.  122 

Prisoner  convicted,  where  under  statute  he  has  waived  right  to 

jury  trial,  entitled  to,  to  test  legality  of  his  confinement vf.  140 

Bail  in  murder  case,  after  disagreement  of  jury vii.  22.1 

To  determine  right  to  custody  of  infant vi.i.  227 


674  INDEX  TO  VOLS.  I  TO  X. 

HABEAS  CORPrS-Conftnued.  paoe. 
Note  on  application  for,  on  ground  that  prisoner  had  been  par- 
doned and  pardon  revoked  after  acceptance vii.  228 

Power  of  court  to  order  or  amend  return  to  a  writ  of, vii.  2:J9 

Note  on  omission  of  clerk  to  certify  transcript  of  rjcord  to  appel- 
late court vii.  237 

Return  of  facts  showing  a  cause  for  detention  sufficient  wlien.  .vii,  229 

— ^  Wlien  prisoner  siiould  not  be  discliargeJ  ou,  because  he  has  not 

been  tried  the  second  term  after  issue  joined vii.  229 

Terms  of  court  illegally  called viii.  'X'A 

Sentence  void  and  voidable viii.  351 

Sentence  for  imprisonment,  and  for  imprisonment  at  hard  lal)or 

distinguished  in,  proceedings viii.  n.")! 

In  extradition  case viii.  241 

Prisoner  released  on,  where  court  without  power  suspends  sen- 
tence  ix.  702 

— —  Final  order  of  discharge  on,  may  be  reviewed  by  higher  court .  ix.  7 1 1 

Higher  court  may  stay  order  of  discharge ix.  711 

— —  Note  on  court  inquiring  into  validity  of  imprisonment  for  con- 
tempt  ix.  2C9 

HABIT. 

Evidence  of,  as  proof  of  identity i.  311 

HABITUAL  CRIMINALS  ACT. 

Constitutionalty  of,  (Illinois) vi.  liW 

- — For  what  offenses  the  sub8e<iuent  convictions  must  bo  had. . .  .vi.  135 

Error  in  former  conviction  immaterial vi.  135 

Limitation  as  to  former  conviction  for  selling  intoxicating  liquora 

(New  Hampshire) vii.  237 

Sufficient  allegations  in  indictment  of  former  conviction vii.  237 

HAWKERS  AND  PEDDLERS. 

Evidence  of  sales  made  in  othei   counties  admissible  against,  on 
trial  for  selling  without  license vii.  240 

HOMICIDE. 

Facts  constituting  murder  in  first  degree i.  208,  ii.  313 

Fixing  degree  of i.  262 

Committed  under  nervous  excitement  by  one  addicted  to  excessive 

use  of  stimulants  murder  in  second  degree i.  2(52 

Presumption  as  to  degree  of  murder 1.  251,  208 

Death  produced  by  blow  or  kick,  manslaughter i.  276 

Committed  resisting  illegal  arrest  manslaughter i.  287 

Killing  officer  attempting  arrest  with  warrant  signed  in  blank  by 

magistrate, i.  287 

Defendant  need  not  be  without  fault  to  reduce  killing  to  man- 
slaughter  i.  293 

Seeing  a  married  sister  in  the  act  of  adultery  not  such  provocation 

as  to  reduce  killing  of  adulterer  to  manslaughter i.  283 

Error  to  charge  "  that  to  reducea,  upon  provocation,"  it  is  essential 

that  the  fatal  blow  shall  have  been  given  immediately  uiton  the  prov- 
ocation given i.  582 


AMERICAN  CRIMINAL  REPORTS.  ^75 

HOMICIDE—Con^'nucd.  page. 

One  who  seeks  and  brings  on  a  difficulty  can  not  shield  himself 

under  plea  of  self-defense i.  251 

One  engaged  in  a  mutual  combat  with  another,  during  the  progress 

of  the  affray  caused  to  entertain  reasonable  belief  that  he  was  in 

danger  of  death,  killing  the  other  it  is,  in  self-defense i.  272 

To  excuse,  on  ground  of  self-defense  not  necessary  that  there 

should  be  immediate  impending  danger i.  298 

One  has  no  right  to  resort  to  violence  in  maintaining  rights  of 

property i.  251 

Where  a  surgical  operation  rendered  necessary,  according  to  the 

judgment  of  a  skillful  surgeon,  by  the  wound  made  by  accused, 

caused  the  death,  he  is  responsible  for  the  death i,  293 

Where  unnecessary  surgical  operation  causes  death,  accused  should 

be  acquitted,  even  though  injuries  inflicted  by  him  might  eventually 

have  proved  fatal i.  293 

Producing  a  skeleton  corresponding  in  sex,  size  and  race  w^ith 

man  accused  was  charged  w^ith  killing,  establishes  corpus  delicti. .  A.  318 

Dying  declarations  must  form  part  of  res  gestce i.  801,309 

Admissibility  of   photograph  for  purpose  of    identifying  body 

found i.  311 

Evidence  of  habit  as  proof  of  identity i.  311 

Evidence  tending  to  show  jealousy  admissible  to  establish  motive .  i.  268 

Evidence  of  relation  of  prisoner  and  deceased,  admissible i.  276 

Respective  strength  of  defendant  and  deceased  may  be  shown.  ..i.  276 

On  trial  for  manslaughter  in  attempting  to  procure  an  abortion 

competent  to  prove  any  fact  showing  cause  of  death i.  301 

When  opinion  of  witness  as  to  what  person  died  of,  proper i.  301 

Prior  conduct  of  defendant  towards  deceased  admissible  to  show 

motive i-  315 

Any  evidence  tending  to  show  motive  is  material  and  admissible .  i.  315 

Declarations  made  by  deceased  when  starting  out  to  find  the 

accused,  touching  his  purpose  in  going,  admissible  as  res  gestce i.  324 

Tlireats  of  deceased  not  communicated  to  defendant  inadmissible 

i.  323,  ii.  323 

Where  the  plea  is  self-defense  proper  to  admit  evidence  as  to  char- 
acter of  deceased  for  violence  and  his  habit  of  carrying  arms i.  330 

J^^ote  on  inadmissibility  of  evidence  to  prove  deceased's  general 

character  for  quarreling  and  vicioiisness i.  343 

Evidenceof  general  reputation  of  deceased  for  violence,  admissible 

when ]■  ^'^^ 

Guilt  established  by  circumstantial  evidence i.  315 

Duty  of  prosecution  as  to  calling  witness i.  276 

Indictment  of  one  count  charging  murder  of  three  persons  charges 

three  oflfenses i.  345 

SeeAb^e >•  ^® 

Conviction  of  manslaughter  in  attempting  to  procure  an  abortion 

not  sustained  on  charge  of  manslaughter i-  801 

Instruction  to  acquit,  if  jury  found  wound  made  by  accused  was 

not  of  itself  mortal,  but  death  was  caused  by  neglect  or  want  of 

proper  treatment  they  must  acquit,  properly  refused ii.  263 


676 


INDEX  TO  VOLS.  I  TO  X. 


HOMICIDE— Conh'nwd.  page. 

— —  Death  caused  from  some  disease  or  disorder  produced  by  wound 
inflicted  by  defendant ii.  263 

An  infant  is  not  the  subject  of  homicide  until  its  life,  independ- 
ent of  the  mother,  exists ii.  374 

Inflicting  mortal  wound  by  discharge  of  revolver,  when  merely 

intending  to  frighten  deceased ii.  326 

Proper  instruction  in  such  case ii.  326 

Person,  being  without  fault  in  a  place  where  he  has  a  right  to  be, 

violently  assailed,  may  repel  force  by  force ii.  251,  318 

Duty  to  retreat ii.  251,  318 

Where  circumstances,  if  they  are  not  disclosed  by  the  evidence,  the 

law  presumes  malice  where  death  is  caused  by  the  use  of  deadly 
weapon ii.  251 

Where  evidence  is  conflicting,  presumption  of  malice  from  use  of 

deadly  weapon  does  not  arise ii.  251 

Defendant,  acting  on  belief  and  apprehension  of  danger  in  firing 

fatal  shot,  not  guilty  of  murder  in  first  degree ii.  284 

Any  evidence  fairly  tending  to  prove  conspiracy  between  the  pris- 
oners to  commit  murder,  and  a  motive  for  the  murder,  admissible,  ii.  290 

Officer  killing  prisoner  to  prevent  escape ii.  624 

Note  an  inatructiom  to  enable  jury  to  determine  whettier  death 

resulted  from  act  of  accused ii.  273 

—  One  doing  a  wrongful  act  not  criminally  responsible  for  all  pos- 
sible consequences  and  circumstances  immediately  following  it. .  .iii.  224 

When  instruction  to  return  a  verdict  of  either  murder  in  the  first 

degreeor  not  guilty,  is  error iii.  170 

When  in  a,  case  verdict  should  be  murder  in  first  degree,  or  not 

guilty iii.  183 

Committing,  perpetration  of  "  other  felony  " iii.  186 

Presumption   that    offense   was  perpetrated  in  commission   of 

another  felony iii.  211 

— —  There  is  no  such  connection  between  rape  or  adultery,  and,  as  to 
make  one  the  natural  consequence  of  either  of  the  othera iii  211 

Presumption  of  malice  where  there  is  full  evidence  of  surround- 
ing circumstances iii.  180 

Such  presumption  does  not  deprive  the  prisoner  of  the  benefit  of 

any  reasonable  doubt iii.  180 

Recklessnes  tending  to  show  mental  depravity iii.  171 

Negligent  use  of  pistol  supposed  to  be  unloaded  causing  death  of 

another  is  not  of  necessity  a  crime iii.  207 

Note iii.  211 

Defense  of  companion's  life  same  as  defense  of  one's  own iii.  343 

Proper  instruction  upon  law  of  self-defense iii.    11 

•«  Coding  time  "  defined iii.  225 

— —  Where  several  deaths  were  caused  in  a  general  affray,  improper  to 
admit  exclamations  of  person  killed  by  one  other  than  the  defend- 
ant as  dying  declarations  against  him iii.  843 

-—  It  must  clearly  appear  that  declarant  believed  his  death  so  immi- 
nent that  motives  to  falsehood  were  superseded  by  motives  to  verac- 

>   ity,  to  entitle  his  declarations  to  admission iii.  229 


AMERICAN  CRIMINAL  REPORTS.  677 

HOMICIDE— fonftttMed. 

PAGE. 

Statements  made  two  days  after  receiving  fatal  shot  admissible  as 

dying  declarations  where  defendant  from  tlie  first  repeatedly  stated 
that  he  would  not  recover ■••    n\a 

Note.    Court  (leterminea  admissibility  of  dying  declarntions. '. '  iii'  230 

Evidence  that  some  of  the  party  with  wliom  deceased  was,  just 

before  fatal  encounter,  dranic  liquor,  admissible iii.  343 

Prior  conduct  of  deceased  and  defendant  may  be  shown. . '. '. '.  ..iii  343 

Upon  trial  of  principals  and  accessories  after  the  fact,  where  the 

former  are  convicted  of  manslaughter,  latter  may  be  convicted  as  ac- 
cessories to  mansl.aughter jjj   ak^ 

Refusal  in,  case  to  compel  state  to  elect  between  a  count  for  mur- 
der and  one  charging  defendant  with  being  an  accessory  before  the 
fact,  not  error ^^    g^ry 

What  constitutes  justitiable j.  463 

HOUSE  OF  ILL  FAME. 

Information  for  keeping,  need  not  be  more  precise  than  in  burg- 
lary or  arson i,  346 

In  prosecution  for  letting  a  house  for  purposes  of  prostitution,  evi- 
dence of  reputation  of  lessee  and  occupants,  admissible i.  340,  351 

Such  evidence  not  sufficient  of  itself  to  support  conviction,  .i.  340,  350 

Evidence  of  general  reputation  of  the  house  admissible i,  350 

Use  of  the  house  and  not  its  reputation  is  the  gist  of  the  offense. 

i.  351,  X.  278 
To  sustain  conviction  for  keeping,  it  must  be  shown  that  defend- 
ant has  some  interest  in  it  as  sur^h,  or  that  he  is  concerned  in  its 

management ii.  380 

Sec.  9386,  Mich.  Stat,  not   repealed  by  Act  136  of  1883 vi.  290 

Evidence  of  keeping  other,  not  admissible x.  278 

Evidence  of  accused's  reputation  for  chastity  improper x.  437 

HUSBAND  AND  WIFE. 

Former  criminally  liable  for  illegal  sales  of  liquor  made  by  latter. 

i.  465,  X.  337 

Evidence  of  other  sales  than  the  one  charged  admissible i.  465 

The  latter,  where  the  former  and  another  are  jointly  indicted  can 

not  testify  for  either  defendant ii.  333 

Note,  on  wife  of  respondent  as  a  witness  for  co-respondent ii.  336 

Refusal  of  former  to  support  latter  and  their  children  in  a  place 

other  than  the  one  he  has  provided  is  not  a  breach  of  a  bond  given  by 
him  to  support  his  family ii.    56 

Hatred  of  husband  for  wife  may  be  shown  on  trial  of  former  for 

arson  to  show  motive,  where  he  had  an  interest  in  the  house  he  was 
charged  with  burning iv.    38 

Evidence  competent  to  show  former  marriage  on  trial  of  husband 

for  bigamy iv.    68 

In  trial  of  husband  for  arson,  ill-treatment  of  wife  can  not  be  shown 

on  cross-examination  of  him iv.    38 

Statement  of  wife  in  presence  of  husband  admissible  in  a  prosecu- 
tion against  him  for  feloniously  receiving  stolen  property iv.  494 


f 
i.ii 


i:-L      ' 


6-78  INDEX  TO  VOLS.  I  TO  X. 

HVSnAND  AND  Wl¥r.-Continned.  page. 

—  Upon  trial  of  wife  jointly  with  iinotlipr  for  larf^ony  of  her  hual)an(r8 

property,  he  can  not  be  (uilied  as  a  witni^sH  a^^ainst  lier iv.  605 

In  trial  of  huabimdfor  ahimlonment,  wife  a  coinj)etent  witnem. 

Note ix.      3 

Note  on  right  of  abandoned  wife  to  onre  of  child ix.      7 

Note  on  liability  of  hnnlHind  who  ha»  abandoned  hin  familji  for 

their  support ix.      7 

Note.     Wife,  euen  without  a  child,  deserted  by  her  huxband,  •'  a 

family  " ix.      6 

Proof  of  marriage ix.  408 

— —  Note,  on  former  guilty  of  rape  upon  latter  an  accensory ix.  448 

Upon  prosecution  against  wife  for  arson,  the  hushand  being  a  part 

owner  of  the  property  burned,  is  a  competent  witness x.    31 

Note.    lahusbandor  wife  guilty  of  artton  in  burning  the  dwelling 

house  which  the  other  owns  and  bothoccupy  f x.    37 

IGNORANCE  OP  THE  LAW. 

Is  no  excuse  for  crime i.    42 

ILLEGAL  ARREST. 

One  killing  an  officer  attempting,  olTense  only  manslaughter. .  .i.    287 

IMPRISONMENT. 

'•  For  fine  and  costs  '*  defined iv.  264 

Sentonce  of,  for  three  several  terms  of  180  days  each,  not  sjieeify- 

ing  time  of  beginning  or  ending  of  last  two  terms  only  valid  for  a 
period  covered  by  a  simple  sentence iv.  568 

Judgment  making  one  term  of,  begin  when  another  ends,  not 

error iv.  568 

Note,  on  court  in  habeas  corpus  proceedings  imjuiring  into  valid- 
ity of,  for  contempt ix.  229 

Note  on  term  of  imprisonment  for  non-payment  of  fine ix.  719 

IMPEACHMENT  OP  WITNESS. 

Bad  repute  of  his  family  or  asHociatcs  is  irrelevant  and  inadmissi- 
ble in,  i.  199 

Witness  testifying  to  bad  reputation  of  impeached  witness  may  be 

asked  whether  he  would  believe  tlie  impeached  witness  under 
oath i.  618 

Evidence  of  general  reputation  for  truth  and  veracity  of  im- 
peached witness,  not  admissible  to  sustain  his  credit i.  301 

Where,  is  sought  by  evidence  of  his  former  conviction  of  a  felony 

his  character  may  be  sustained  by  evidence  of  his  general  reputa- 
tion   : i.  197 

Error  in  excluding  evidence  which  is  competent  for  the  purpose 

of,  can  only  be  remedied  by  venire  de  novo x.    20 

Admissibility  of  contradictory  statements  by  deceased  to  impeach 

dying  declarations  made  at  the  same  time x.  282 

INCEST. 

Indictment  for,  which  does  not  allege  knowledge  of  relationship 
bad  on  motion  to  quash i.  354 


079 


PAGE. 

''hand's 

....iv. 

005 

mtncHH. 

....ix. 

3 

....ix. 

7 

ill/  for 

....ix. 

7 

id,  •'  a 

....ix. 

6 

....ix. 

408 

....ix. 

448 

:  a  part 

X. 

31 

welling 

X. 

37 

i. 

42 

er...i. 

287 

....iv. 

364 

iwcify- 

il  for  a 

....iv. 

508 

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iv. 

568 

» vulid- 

ix. 

229 

....i.x. 

719 

Imissi- 

i. 

199 

nay  be 

i. 

618 

af  im- 

i. 

301 

•eputa- 

i. 

197 

urpose 

X. 

20 

X. 

283 

snship 

i. 

354 

AMERICAN  CRIMINAL  REPORTS. 
IMTjHT-Continiied.  „,„„ 

PAGE. 

Is  a  joint  ollt-nse,  and  arqulttal  of  one  ia  a  li.ir  to  prospciition  of 

the  other ,    „. . 

A  statutory  criminal  «)fft'nsp jj'  gjj. 

Solicitation  to  commit,  not  indictable jj   jj.jq 

Evidence  of  presnancy,  and  pat.rnity  of  tbc  diild  in  trial  for,  im- 
material as  affecting  guilt  or  innocence  of  dcfcmlant iii.  236 

Reputation  of  prosecutrix  for  chastity  imnuiterial  to  the  isHue  ~ 

in  prosecution  for jjj   ggfl 

Brother-in-law  and  sistor-in-Iaw  nearer  of  kin  by  alHnity  tlinn 

cousins jy^  <j~j 

Consent  of  female  not  an  element  of y.  298 

Between  father  and  illcgilimate  daugliter viii.  864 

Note,  on  what  rehitiomhip  of  parlies  makes  their  uuhmful  carnal 

interconrae, ' ^^jjj   ^qq 

In  trial  for,  variance  in  name  where  identity  of  female  is  un(|ues- 

tioned,  does  not  avail viii.  364 

In  a  prosecution  for.  the  party  not  on  trial  is  an  a(!complice  whoHe 

testimony  must  be  corroborated yiii.  867 

Single  sexual  act  may  establish viii.  373 

Sulliciency  of  allep;;ition  in  inilictincnt  for,  of  kiiishi|) viii.  878 

— —  Averment  that  the  partii'S  were  not  husband  and  wife  not  neces- 
sary  viii.  873 

INDECENT  EXlIiniTION. 

Sutliciency  of  indictment  for jii.  436 

INDECENT  EXPO.SURE. 

Crime  of,  committed  if  exposure  made  in  view  of  windows  of  neigh- 
boring dwelling  houses iv.  273 

— —  Not  necessary  that  any  pereon  should  actually  si-e  such  expos- 
ure   iv.  273 

INDECENT  LETTER  TO  FE.HALE. 

Indictment  for  sending,  nmst  allege  sending  same  without  lawful 
purpose iv.  275 

INDICTMENT  AND  INFORMATION. 

Abatement  plea  of,  other,  as  sustaining viii. 

Al)ortion.  sufficiency  of  description  of  means  used  in,  for iv. 

Charging  criminal  alwrtion  and  manslaughter  committed  subse- 
quently charges  different  offenses vii. 

Abortion  for,  charging  death  both  from  use  of  instruments  and 

drugs  not  bad  for  duplicity viii. 

Abortion,  for  must  charge  malice vi. 

Abortion  for,  causing  death  in  attempt  to  produce,  not  alleging  in- 
tent, charges  murder  in  the  second  degree viii. 

Abortion,  note  on  description  of  instrument  in,  for x. 

Absence  of  prisoner  on  motion  to  (luash v.  517 

Accessory  against,  for  assault  with  intent  to  murder x.    46 

Accessory,  note  on  stating  circumstances  of  the  offenses  in  an, 

against. x.  828 


225 
15 

345 

566 
16 

566 
13 


680  INDEX  TO  VOLS.  I  TO  X. 

INDICTMENT  AND  INFOnMATION-CoH/umcd.  rAOE. 

— —  Acctiaed,  note  on  apprUing,  with  reaiionable  certainty  of  the  accii- 

mtion  agniiiHt  him vii.  200 

— -  Accused  slmll  bo  apprised  by  the,  of  the  crime  churged  with  rea- 
sonable certainty X.  851 

Adultery  where,  for.  does  not  allege  the  woman  wnH  not  defend- 
ant's wife  but  dm^  allege  she  whh  Ring;') i.    84 

Adultery,  for,  should  allege  offense  substantially  in  language  of 

statute vi.    17 

Adultery,  for,  variance  in  naino x.     19 

Allegations  must  be  of  facts,  not  legal  conclusions iv.  2*6 

—— Allegations  of  the  *' otherwise"  acts  where  statute  doclnres  that 
offense  may  be  committed  by  specified  acts  or  means,  "  ur  other- 
wise," must  be  in  words  generally  underatooil  by  the  people iv.  247 

— —  Allegations  immaterial,  in,  not  fatal v.    U3 

Allegation  of  particular  place  when  necessary vi.  108 

Allegations,  alternative  in viii.  883 

Allegations  of  facta  which  the  law  will  necessarily  infer  not  neces- 
sary in, X.  480 

Amendment  of,  by  State's  Attorney v.  297,  vi.  133 

Amendment  and  conclusion  of,  containing  two  counts  charging 

Bame  crime vi.    41 

Amendment,  record  must  show  afHrmatively  that  defendant  con- 
sented to vii.  240 

—  Amendment  of  comi}laint,  note  on x.  455 

Arson,  for,  need  only  state  setting  fire  was  "  wilfully  and  mali- 
ciously "  done vi.    8? 

Arson,  allegation  of  ownership  in,  for x.  31,  37 

Assault,  an,  with  intent  to  kill  by  use  of  poison,  note  on  auffleieney 

of,  for ix.    88 

Assault  with  intent  to  murder,  note  on  sufficiency  of,  for, x.    56 

Assault  with  intent  to  ravish,  for,  not  charging  act  as  feloniously 

done  is  bad,  but  may  be  good  as  an,  for  an  o^^suult  and  battery i.  043 

Assault  and  battery  for  an,  with  intent  to  commit  rape,  though  in 

exact  language  of  statute  may  be  erroneous vi.    49 

Assaulting  officer  for,  must  charge  accused  knew  person  assaulted 

was  an  officer vi.    43 

Averments  in,  should  be  clear,  definite  and  distinct i.  811 

Averments,  note  on  negative  in,  when  statute  makes  excep- 
tions  x.  455 

Banker,  'or  receiving  deposits  knowing  bank  was  insolvent. . .  .x.    71 

See  Note x.    89 

. Bigamy  for,  language  of  statute  sufficient  in, iv.    68 

Breaking  and  entering  for,  railroad  car vii.  100 

Bribery  requisites  of  an,  for,  where  accused  is  charged  with  at- 
tempting to  bribe  a  legislator iv.    71 

Bribery,  note  on,  for,  of  voter x.  135 

Burglary  for,  when  not  bad  for  duplicity iv.    83 

Burglary  attempt  to  commit,  sufficiency  of  allegations  in,  for.  .v.    61 

Burglary,  one  acquitted  of,  under,  containing  counts  for  both  bur- 
glary and  larceny  will  be  guilty  of  grand  or  petit  larceny v.    08 


AMERICAN  CRIMINAL  REPORTS.  dgj 

INDICTJIENT  AND  INFORMATION-Confi««cfJ.  p^oE. 

Burglary  for,  must  allege  ownorsliip  of  buililinj,' y.    06 

Contra *  ' " '  "^j*    gg 

Bur«lary  In,  for,  ownorshlp  may  be  laid  In  ociupant .....\i    80 

Burglary  for,  n  •  jI  not  allege  value  of  goods  taken ' " vi[    09 

Burglary,  negative  allosntions  in,  for ' ' . yii.  203 

Burglary  and  an  assault  witli  Intent  to  commit  rape  can  not  be 

joined  in  different  counts  of  same, ijj,  343 

Burglar  If,  note  on  mifflciency  of,  for x.  154 

Burglar's  tools,  alleging  possession  of  witli  intent  to  break  and 

ent«r-: X.  150 

Caption  a  part  of  the,  as  an  aid  in  showing  venue v.  COl 

Caption,  misnaming  offense  in, yiij_  3^7 

Clerks  error  in  entering  does  not  invalidate iji.  303 

Concealing  stolen  goods  for,  need  not  set  forth  separate  valua- 
tion    vi.  307 

Conspiracy  for,  without  charging  a  corrupt  confederation v.  128 

— —  Conspiracy  for,  retiuisites  of v,  118 

Conspiracy  for,  to  obtain  goods  of  another  by  false  pretenses. . .  v.  127 

Conspiracy  for,  to  defraud  United  States  of  tracts  of  land ix.  101 

Conspiracy  for,  to  commit  offense  against  the  United  States. .  .ix.  338 

— —  Conspiracy  for,  to  rob  in  a  sister  State \x.  luo 

Conspiracy  for,  prosecution  by  information x.  237 

— —  Constitutional  right  of  defendant  to  be  informed,  etc x.  251 

Continuundo,  charging  offense  with  a v.  332,  viii.  890 

— —  Corruption  in  otHce,  requisites  of,  for iv.  143 

Cruelty  to  animals  for, v.  201 

Demurrer  does  not  lie  when,  is  regular  on  its  face v.  023 

Demurrer  note  on,  tcliere  distinct  offenses  are  charged  in  different 

counts vii.  258 

— —  Demurrer,  duplicity  in,  fatal  on viii.  307 

Dismissal  of,  by  State's  Attorney  after  attacked  by  denmrrcr. . .  x.  433 

Disorderly  house,  for  keeping ix.  239,  x.  273 

- —  Election  when  required  where,  charges  two  or  more  offenses  in  sev- 
eral counts vii.  240 

Embezzlement  for,  language  of  statute  sufficient  in, iv.  211 

Embezzlement  for,  requisites  of v.  200,  210 

Embezzlement  for,  what  need  not  be  alleged  in ix.  248 

— —  Embezzlement  for,  alleging  capacity  of  accused  when  money  was 

received  by  him x.  283 

Embezzlement  for,  note  on  failure  of,  against  agent  of  corporation 

to  a'>?ge  money  belonged  to  employer x.  201 

Escape,  recjuisites  of,  for  aiding  party  under  arrest  to vi.    81 

Escape  from  prison,  requisites  of,  for  attempt  to v.    68 

—— Extortion  for,  against  officer  for  receiving  excessive  fees ix,  205 

False  advertisements  by,  requisites  of,  for  obtaining  money x.  818 

—  False  pretenses  for,  in  selling  a  mortgage  not  giving  the  name  of 

purchaser  or  describing  property  is  bad  on  motion  to  quash i.  211 

False  pretenses,  for  obtaining  goods  from  a  firm  by,  need  not  set 

out  names  of  individual  members vi.  256 


it:.,  i 

^*-  -y 

^  ■' 

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j 

J      ,  .     ;'■ 

Ik 

C82 


INDEX  TO  VOLS.  I  TO  X. 


INDICTJIENT  AND  INFORMATION— ConhHwd.  page 

False  pretense  for,  must  set  forth  fully  trick  or  device  made  use 

of vii.  184 

False  pretenses,  suffleiency  of,  for  obtaining  goods  by, viii.  2 19 

FctlKe  i)vetenses,  note  on,  for,  charging  facts  only ix.  161 

"  Feloniously  "  not  necessary  in  an,  forstatutory  felony ix.    20 

Felonious    wounding,  for x.    23 

Forcible  entry  and  detainer  for v.  299 

Foreman,  not  indorsed  *'  true  bill "  nor  signed  by,  not  subject  to 

r.io'.  ion  to  quash iv.  279 

Foreman's  certificate  absent  not  conclasive  that  no  certificate  ex- 
isted   iii.  218 

"Foreman,"  omission  of  word,  in  signature  to,  will  not  invali- 
date   vi.  296 

Forgery  for,  must  .allege  who  was  intended  to  be  defrauded i.  227 

Forgery  for,  must  allege  scienter , iv.  246 

Forgery  a  count  charging,  and  altering  forged  instruments  ren- 
ders, bad  for  duplicity vi.  272,  ix.  051 

Forgery  for,  of  name  of  deceased  person vii.  188 

Forgery  for,  requisites  of, vii.  192 

Forgery  of  check,  note  on,  charging,  and  the  altering  thereof  in 

separate  counts x.  417 

Forgery  for,  note  on,  of  instrument  need  not  set  out  same  in  huve 

verba x.  418 

Fraudulent  sale  of  mortgaged  property  for,  need  not  allege  defend- 
ant was  owner  of  mortgaged  property v.  243 

Fraudulent  sale  of  mortgaged  property  for,  alleging  sale  to  person 

unknown vii.  243 

Gambling  for,  setting  out  lottery  ticket  in vi.  284 

Gambling  for,  unnecessary  to  allege  names  in viii.  326 

Gambling  on  horse  races  for,  note  on  re(iHisite  of x.  422 

Grand    jury   unauthorized     pei-son  before,    when    tinding,    im 

proper vi.  511 

Grand  jury,  basis  of,  can  not  be  shown  by  memb(>r  of, viii.  391 

Habitual  criminal  act  under,  sufiicient  allegations  of  former  con- 
viction in, vii.  237 

Incest  for,  must  allege  knowledge  of  relationship  by  both  parties. i.  354 

Infamous  crime,  prosecution  for,  by  information iv.  283 

Intoxicating  liquors,  for  illegal  sale  of,  to  minor,  need  not  allege 

accused  knew  purcha.ser  was  a  minor i.  471 

• Intoxicating  liquor,  for  selling  nmst  aver  sale  was  not  made  for 

medical  purptwes  by  a  practicing  physician iv.  278 

Intoxicating  liquor,  note  on  form  of,  for  selling  without  license.\n.  263 

Intoxicating  liquor  suffleiency  of,  for  selling,  to  minors vii.  297 

See  Note vii .  299 

Intoxicating  liquors,  evidence  when  given  day  is  alleged  in,  for 

selling v.  332 

Intoxicating  liquor,  on  trial  under,  for  selling,  prosecutor  should 

specify  the  day  to  which  proof  will  apnly v.  332 

Note  on,  for  violating  local  frrohilntory  act x.  346 

Joinder  of  joint  and  several  counts  in  same i.  018 


AMERICAN  CRIMINAL  REPORTS.  GS3 

INDICTMENT  AND  INFORMATION -Co«<iHM«?.  page. 

Joinder  in  one  count  of  two  or  more  distinct  acts  connected  with 

same  transaction ^   099 

Joinder,  note  on,  of  offenses  in yj   284 

Joinder  in,  for  an  offense  of  a  count  for  a  lesser  offense,  or  for  an 

attempt  to  commit  the  same,  surplusage jx.  310 

Joinder,  note  on,  of  counts  and  persona  where  two  offenses  arise 

from  the  same  transaction j^.  348 

Larceny  charging,  of  United  States  currency  should  describe  the 

same  by  number,  kind  and  denomination  of  the  bills  or  give  a  good 

and  sufficient  excuse  for  not  doing  so jv.  491 

Larceny  for  proper  averments  in,  from  the  person  of  promissory 

notes  and  coins v.  345 

Larceny,  description  of  book  necessary  when  the  subject  of, v.  360 

Larceny  for,  note  on  necessary  description  of  stolen  goods  tn,.  .vii.  245 

Larceny,  note  on  variance  between  proof  and,  for,  as  to  ownership 

of  stolen  articles vii.  253 

Larceny  for.  insufficiently  describing  stolen  property  bad  on  de- 
murrer  viii,  474 

Larceny  and  burglary  Joined  in  same,  note  on ix.  348 

Less  offense  included  in  greater iv.  254 

. Libel  defamatory  for,  ouiitting  to  allege  that  libel  was  published 

maliciously,  good x.  480 

Lost,  supplying iii.  309 

Lost  or  mislaid  is,  when, iv.  482 

Motion  to  quash  "vill  not  prevail  where  some  counts  are  good i.  618 

Motion  to  quash  on  ground  of  misjoinder  counts  is  not  review- 
able on  writ  of  error i.  618 

Motion  to  qua^h  prevails  where  foreman  of  grand  jury  has  not 

signed, vi.  296 

Motion  to  quash  note  on,  for  misjoinder  in,  vii.  113 

Motion  to  quash  should  prevail  where  second,  is  returned  with- 
out any  further  examination  of  witnesses,  tlie  first,  having  been 

quashed vii.  245 

Motion  to  quash,  pending  plea  of  not  guilty viii.  698 

Motion  to  quash,  will  prevail  where  based  on  defective  affidavit  viii.  259 

Motion  to  quash,  for  perjury viii.  025 

Motion  to  set  aside,  practice  as  to viii.    53 

Motion  to  set  aside,  on  ground  of  bias  of  grand  jurors viii.  338 

Murder  for  in, with  "  malice  aforethought"  is  tantamount  to  "  will- 
ful, deliberate  and  premeditated  " iv.  375 

Murder  for,  the  words  "  deliberation  and  premeditation  "  not  essen- 
tial in, i V.  386 

. Murder  by  killing  with  a  club,  requisites  of,  for v.  469 

Murder  in  first  degree  for,  in,  assault  and  battery  need  not  be 

cha r ged v.  469 

Murder  for,  need  not  charge  killing  was  "  unlawfully  done,"  that 

defendant  was  "  a  person  of  sound  memory  and  discretion,"  nor  that 

deceased  was  "  a  reasonable  creature  in  being" v.  477 

. Murder  for,  while  committing  rape vii.  254 

Murder  for,  note  on,  not  including  assault  and  battery x.  329 


•I 


684 


INDEX  TO  VOLS.  I  TO  X. 


1  i>-ii 


INDICTMENT  AND  UiFOR^ATIO^— Continued.  taof. 

Perjury  for,  requisites  of iv.  4G5 

Perjury  for  in,  wliere  names  of  parties  to  proceedings  in  wliich 

alleged  false  oath  was  taken  are  incorrectly  stated  the  variance  is 

fatal iv.  465 

Perjury,  sufficiency  of  allegation  and  description  of  property  in, 

charging,  in  having  willfully  sworn  falsely  to  an  inventory  in  in- 
solvency   vii.  499 

Perjury,  allegation  of  time  in,  for vii.  495 

Perjury  for,  note  on  requisites  of, • vii.  497,  503 

Preferred  ex  mero  motu viii.  391 

Presentment,  sent  in  after viii.  a91 

Prostitution  and  concubinage,  for   taking  females  for,  bad  f(jr 

duplicity  when v.    1 

Rape  attempt  to,  for,  may  be  sufficient  without  the  word  •'  rape" 

being  used  therein v.    66 

Resisting  officer,  for,  need  not  aver  how  officer  acted iv,  5."i9 

Return  of v,  517 

Riot  for,  requisites  oi' ix.  582 

Robbery  for,  description  of  offense  in, vii.  COO 

Robbery  for,  charging  the  taking  "by  means  of  fraud  and  force" 

is  sufficient vii.  600 

Robbery  highway  for,  in,  words  '•ten  dollars  in  money"  means 

money  "  of  the  value  of  ten  dollars  " ix.  310 

Robbery  for,  in,  special  allet<,-ation  that  accused  stole  the  money 

required ix.  310 

Robbery  for,  noteon  allegation  of  ownership  in ix.  5!)4 

- —  Second,  error  to  return  without  recalling  witnesses vii.  245 

Seduction  for,  sufficiency  of  (Kansas) vii.  604 

Serving  copy  of,  and  list  of  jurors  uj^n  accused iv.    43 

Statutory  critne,  charging,  in  words  of  act  creating  the  offense 

sufficient i.  400,  iv.  276 

Statutory  crime,  charging,  in  language  of  statute  supplemented  by 

statement  of  facts vi.    31 

Statutory  crime  for,  requisites  of, vii.  254,  viii.  3'26,  ix.  608 

Statutory  crime  exact  words  defining,  not  required  to  be  used  in . .  v,    66 

Statutory  crime,  note  on  usiug  Language  of  statute  in,  for, .  vii.  259,  261 

Time,  not  a  matter  of  description,  need  not  be  proved  as  laid i.  346 

Time,  stating  impossible vii.  264,  viii.  390 

Titne,  note  on  stating vii.  265 

— —  Is  fatally  defective  failing  to  allege  offense  committed  anterior  to 

day  of  filing  thereof iv.  202 

Variance  is  fatal  where,  for  bribery  avere  that  third  parties  referred 

to  were  unknown  to  grand  jury  and  on  trial  it  appeared  they  were 

known iv.    78 

Variance,  note  on,  in  regard  to  middle  name  or  initial  of  uccuskI, 

not  being  fatal vii.  244 

Variance  note  on,  between  proof  and,  for  larceny  as  to  owner- 

Bhip  of  stolen  articles vii.  258 

Variance  in  name  not  always  fatal viii.  364 

—  Veuue,  sufficiency  of  laying vi.  208 


AMERICAN  CRIMINAL  REPORTS.  (535 

INDICTMENT  AND  INPOBMATION-Cou<miKrl.  p^gj.. 
Venue  when  oflfense  is  committed  near  boundarj-  line  between 

counties ...     ^ 

Verdict,  one  good  count  in,  supports v   127 

Witnesses,  indorsement  upon,  after  going  to  trial,  of  the  names  of 

additional j^   ^.q 

Witnesses   names  of,  statutory  requirement  to  indorse,  uponi 

mandatory '     ^.jj  '  249 

Witness  indorsement  of  name  of  defendant  as,  upon    not  re- 

quired '     '        ^.  -  j   ggg 

Witnesses  names  of,  presumption  that,  were  indorsed  upon.. .  .ix.  4C0 

When,  must  conclude  against  the  statute j,  ggg 

When  two  or  more  felonies  are  joined  in  one,  they  must  be  in 

separate  counts y      j 

Grammatical  or  verbal  inaccuracies  not  fatal  to vi.  407 

And  indorsem.'nts  part  ot  the  record yi_    51 

Plea  of  guilty  I0  an,  charging  no  offense  confesses  none viii.  543 

Withdrawal  o'.  plea v.  517 

Note  on  sepo.-ate  offenses  in  one  count vii.  253 

Insertion  of  unnecessary  word  in,  should  be  disregarded  when.iv.  485 

INFAMOUS  CRIME. 

Information  for iv.  283 

Omission  in  record  of  conviction  for,  that  there  was  no  suitable 

penitentiary  within  state  no  ground  for  discharge iv.  283 

Certified  copy  of  record  of  conviction  for,  valid  upon  its  face  suffi- 
cient for  holding  prisoner  without  warrant  or  mittimus iv.  283 

Defined iv.  283 

Conviction  for  under  federal  statute  not  reviewable  in  circuit  court 

of  appeals ix.  436 

INFANTS. 

Statute  exempting,  from   imprisonment  does  not  exempt  them 

from  death  penalty iv.  393 

Onus  on  state  to  overcome  presumption  of  incapacity  of iv.  393 

May  be  convicted  of  larceny  as  bailee v.  303 

INQUEST. 

Destroying  dead  body  to  prevent  holding  of  inquest  thereon iv.  593 

Coroner's  court  a  criminal  court— evidence  taken  therein  can  not 

be  received  against  defendant  at  trial x.  293 

INSANITY. 

Burden  of  proof  of,  on  respondent  when  relying  on,  as  a  defense. 

i.  358,  iii.  218,  iv.  386,  vii.  266,  x.  329 

To  avail  as  a  defense  in  murder  charge  must  be  proven  beyond 

doubt »•  283 

Reasonable     doubt     of    sanity    does     not    warrant    acquittal. 

i.  297,  iv.  386,  vii.  266 

Contra i»-  218,  vi.  461 

Must  exist  at  time  of  killing »•  297,  359 

Where,  is  set  up  as  a  defense  letters  of  defendant  are  admissible 

to  show  sanity ii.  813 


I 


> 


■:iMh 


,686 


INDEX  TO  VOLS.  I  TO  X. 


INSANITY— Con/i)iucd.  page. 

Moral  and  nientjil.  distinsuishod ii.  813 

Evidence  of  defendant's,  from  appearance,  actions  or  words  in  and 

out  of  court iii.  165 

Evidence  of  prior  deluHions  admisMible iii.  229 

Instruction  as  t«i  the  relation  of  time  between  epileptic  attacks, 

which  tend  to  produce  insanity  iind  the  commission  of  the  offense,  iii,  233 

Test  of  re3ponsil)ility iv.  53,  v.  307,  vii.  266 

Produced  by  intoxication  as  a  defense iv.  365.  395 

Opinionsof  non-experts  as  t*>  sanity  of  accused . .  .iv.  895,  vii.  206,  x.    57 

Presumption  of  law  as  to  sanity vi.  401,  x.  329 

When,  of  juror  not  ground  for  new  trial vi.  556 

Delusional, vii.  266 

As  a  disease vii,  266 

Accused  can  not  be  tried  by  same  jury  impaneled  to  pass  on  his 

insanity ix.  348 

Keasonable  ground  to  doubt  sanity  of  accused  should  exist  before 

impaneling  jury  to  inquire ix.  626 

Partial ix,  626 

Irresistible  impulse ix.  626 

Defense  of,  included  in  and  made  by  the  plea  of  the  general 

issue X.  329 

Defined x.  329 

Instructions  pi'oi>er  as  to  different  kinds  of  insanity  x,  329 

Burden  of  proof  is  on  accused  urging  his,  as  a  defense x,  585 

Where,  is  urged  as  a  defense  if  the  jury,  on  the  whole  testi- 
mony, giving  to  the  presumption  of  sanity  its  full  operation,  are 

satisfied  accused  was  insane   when    the  act  was  committed  they 

should  acquit;  otherwise  convict x,  585 

Note  on  preHumption  of  sanity  and  burden  of  proof. x,  601 

Effect  of  discharge  of  a  person  front,  insane  asi/lum x,  603 

Person  deaf  and  dumb  from  his  nativity  not  therefore  non  comjms 

mentis x,  603 

— —  Presumption  that  a  deaf  mute  charged  with  homicide  is  criminally 

responsible  for  his  act x,  603 

Accused  not  required  to  prove,  wliere  his,  appears  from  evidence 

offered  by  prosecution x.  603 

Defendant  relying  upon,  as  a  defense  has  tlie  affirmative x,  603 

As  to  burden  of  proof  of  partial, x.  603 

Allegation  of  temporary,  as  a  defense  casts  burden  of  pritof  upon 

accused  to  prove  that  he  was  actually  insane  at  the  time  criminal  act 

was  committed x,  603 

Ch  want  of  moral  potver  to  resist  impulse  to  commit  crime x.  603 

Instructions  as  to  presumption  of  accused's  sanity  not  sidijvct  to 

the  objection  that  they  fail  to  call  attention  of  jury  to  the  defense  of, .  .x.  604 
Burden  of  proof  of  ,  rests  ujwn  accused  where  a  jury  is  impaneled 

at  his  instance  to  ti'y  the  question  of  his  sanity x.  604 

Irresponsible  drunkenness  relied  upon  as  a  defense  must  be  proved 

affirmatively x.  004 

Where  alcoholic,  ia  relied  upon  aa  a  defense,  it  must  be  shown  to 


AMERICAN  CRIMINAL  REPORTS. 


687 


PAGE. 


INSANITY— Con^inited. 
have  been  caused  by  an  habitual  and  long- continued  intemperate  use 
of  ardent  spirits,  and  not  as  an  immediate  result  of  intoxication,  .x.  604 

Plea  of,  as  a  defense  ia  but  a  denial  of  one  of  the  essential  allega- 
tions against  the  accused  and  does  not  cast  burden  of  proof  upon 
defendant x,  mi 

It  ia  incumbent  upon  prosecution  to  prove  sanity  of  accused  as 

well  as  every  other  ingredient   necessary  to  constitute  tlie  crime 
''''"'•fi'^'^ X.  604 

— -  Instruction  that  defendant  ia  presumed  sane  until  he  convinces  the 
jury  by  evidence  that  he  is  insane  is  not  error  ivhere  he  has  been  tried 
upon  the  theory  that  the  burden  rested  with  the  prosecution  to  estab- 
lish his  sanity ^^    -qb 

State  not  bound  in  the  first  instance  to  introduce  evidence  to  prove 

sanity  of  acctised j^   gQs 

When  the  presumption  of  sanity  and  the  evidence  are  all  consid- 
ered the  prosecution  holds  the  ajjirmative x.  605 

Burden  of  showing  sanity  of  accused  restswith  prosecution x.  605 

Presumption  of  sanity  is  sufjlcient  to  sustain  the  burden  of  proof 

where  aceused  offers  no  testimony  to  meet  the  presumption x.  605 

Sanity  involves  sufficient  mental   capacity   to  comprehend   tlie 

nature  of  the  act  complained  of x.  606 

Evidence  tending  to  show,  of  accused  does  not  shift  burden  of 

|)r()of  upon  prosecution  unless  it  is  sufficient  to  create  a  reasonable 
doul)t  as  to  his  sanity x.  606 

Proof  of  insensibility  to  the  consequences  of  liis  acts,  and  of  ab- 
sence of  apparent  motive  is  not  such  evidence  of,  as  will  cast  burden 
upon  the  State  to  affirmatively  show  accused  was  sane  at  the  time.x.  606 

■  l^oof  of  domestic   trouble,  unless  sufficient  to  raise  reasonable 

doubt  in  regard  to  accused's  sanity  will  not  shift  burden  upon  prose- 
cution, Note x.  606 

in  prosecution  of  a  inan  lor  an  assault  upon  his  wife  with  intent 

to  kill,  evidence  as  to  his,  required  to  shift  burden  of  proof x.  606 

A  statute  which  provides  for  an  inquisition  where  there  is  a  prob- 
ability that  the  accused  is,  at  the  time  of  his  trial,  insane,  and  thereby 
incapacitated  to  act  for  himself,  to  determine  whether  he  is  so  in- 
sane, which  is  in  affirmance  of  a  power  of  the  court  at  common  law, 
is  in  aid  of,  and  not  in  derogation  of,  the  Bill  of  Rights,  securing  to 
accused  a  fair  and  impartial  trial,  the  result  of  the  inquisition  hav- 
ing no  legal  effect  on  the  main  issue x,  606 

Under  such  a  statute,  providing  that,  when  the  jury  disagree  on 

the  trial  of  the  special  issue  of  accused's  insanity  at  the  time  of  the 
commission  of  the  alleged  offense,  the  court  shall  forthwith  order 
the  trial  on  the  issue  of  not  guilty  to  proceed,  and  the  question  of 
insanity  involved  in  such  special  plea  "  shall  be  tried  and  determined 
by  the  jury  with  the  plea  of  not  guilty,"  defendant  can  not  have  a 
second  trial  on  the  special  issue,  there  having  been  a  disagreement  on 
the  first x.  606 

— —  The  jury  having  disagreed  on  the  special  issue  of  insanity,  defend- 
ant can  not  obta-'n  the  affirmative  of  tlie  issue  of  his  sanity  or  insan- 


688 


INDEX  TO  VOLS.  I  TO  X. 


& 


i' 

•V  i 


,1 


INSANITY— C?)n<t)w<eA  '  page. 

ity,  and  the  right  to  open  and  close,  by  admitting  the  homicide,  and 
alleging  in  defense  his  insanity  at  the  time  thereof x.  606 

^—  Exclusion  of  evidence  of  defendant's  acts,  conduct,  and  declara- 
tions subsequent  to  the  fourth  day  after  the  homicide,  showing  the 
continuance  of  his  condition  tlie  same  as  immediately  before  the 
homicide,  offered  on  the  question  of  his  insanity  at  the  time  of  the 
killing,  is  error : x.  606 

In  a  homicide  case  it  is  error  to  admit  testimony  that  a  man  suf- 
fering from  delirium  tremens  has  no  more  control  over  his  actions  in 
that  respect  than  a  man  suffering  from  delirium  produced  from  any 
other  cause,  but  still  he  is  sane;  as  delirium  tremens  caused  by  drunk- 
enness may  be  an  excuse,  if  it  produces  such  a  state  of  mind  as  would, 
ir  »  I'erwise  produced,  relieve  the  person  from  resiwnsibility x.  606 

— —  i»Oie  on  insanity  caused  by  drunkenness  as  excusing  or  palliating 
a  Clime x.  622 

Note  on,  produced  by  the  use  of  morphine,  cocaine  and  intoxi- 
cants  X.  623 

Non-experts  may  testify  to  their  belief  as  to  the  sanity  of  accused 

without  giving  the  facts  upon  which  it  is  based viii.  574 

'  —  Extent  of  witness'  acquaintance  with  accused  necessary  to  render 
his  testimony  admissible viii.  574 

Delusion  defined viii.  574 

Delusion,  when  it  will  excuse  crime viii.  574 

INSTRUCTIONS. 

Presenting  theory  of  accu3Pd iv.  293 

Defendant  entitled  to.  as  to  reasonable  doubt iv.  514 

Reasonable  doubt  defined  as  used  in, iv.  52,  v.  20,  455,  vii.  428 

Giving  too  many jv.    63 

Following  language  of  st.'itute iv.  52,  v.  406 

Unless  good  as  a  whole  should  he  rejected iv.  514 

Directing  jury  as  to  form  of  verdict iv.    53 

Giving  undue  prominence  to  particular  facts iv.  338 

Should  be  applicable  to  the  case iv.  838,  v.  499 

As  to  reasonable  doubt  applying  with  greater  force  to  circumstan- 
tial evidence,  erroneous iv.  851 

Saying  that  if  the  circumstances  are  capable  of  beinK  explained  on 

a  theory  consistent  with  innocence  of  accused  the  jury  should  acquit, 

error iv.  351 

As  to  policy  of  the  law  that  many  guilty  should  escape  rather  than 

one  innocent  should  suflfer iv.  351 

Not  in  writing,  must  refer  to  authority iv.  365 

On  credibility  of  witnesses iv.  375 

Stating  abstract  propositions  of  law iv.  395 

Excluding  defense  of  insanity iv.  895 

Sufficient  if,  as  a  whole,  substantially  present  the  law  of  the 

case iv.  403,  vi.  570 

As  to  degree  of  murder  to  be  found  error,  when iv.  417 

Sufficiency  of  charge  as  to  reasonable  doubt iv.  533 

— -  In  bribery,  as  to  value  of  thing  offered iv.    71 


AMERICAN  CRIMINAL  REPORTS. 


689 


PAGE. 

and 

,..x.  606 
lara- 
;  the 
i  the 
t  the 
...X.  606 

1  8Uf- 

tns  in 
nany 
runk- 
rould, 
....X.  606 
iating 
....X.  623 
ntoxi- 
....X.  623 
3cu8ed 
..viii.  574 
render 
..viii.  574 
, .  .viii.  574 
, ..viii.  574 

....iv.  293 
...iv.  514 
55,  vii.  428 
.iv.    53 
53,  V.  406 
..iv.  514 
..iv.    53 
..iv.  338 
338,  V.  499 
mstnn- 

...iv.  851 
ned  on 
acquit, 

.iv.  351 
T  than 
,.iv.  851 
,.iv.  865 
..iv.  375 
..iv.  805 
..iv.  895 
of  the 
,03,  vi.  570 
....iv.  417 
....iv.  533 


1NSTRUCTIONS-Co?i<tnj(cd.  pj^Qj., 

As  to  rejection  of  testimony  of  witness  who  has  testified  falsely  to 

one  or  more  facts v.  20,  425;  vii.  126,  153,  509 

As  to  reasonable  theory  upon  which  to  otherwise  account  for  the 

crime v.    20 

Repetition  of,  unnecessary y^    20 

As  to  probability  of  accused's  innocence v.    43 

Reasonable  doubt  need  not  be  entertained  by  all  the  jurors v.    48 

Assuming  existence  of  disputed  facts v.  57,  98,  318 

As  to  good  character  of  accused  v.  113 

Declaring  "  the  testimony  in  the  case  shows"  error v.  318 

As  to  jury  recommending  prisoner  to  the  mercy  of  the  court. .  .v.  320 

Undertaking  to  state  evidence. . . ; v.  333 

On  hypothesis  which  evidence  tends  to  prove v.  350 

Directing  jury  if  they  believe  from  the  evidence  certain  facts  they 

should  find  defendant  guilty  of  murder,  erroneous v.  425 

Abstractly,  erroneous  not  always  ground  for  reversal v.  425 

Erroneous,  not  ou'  <'d  by  others  correctly  stating  the  law v.  459 

As  to  self-defense v.  485 

_ —  Fewer,  should  lie  given v.  485 

. An,  good  as  a  whole  not  attackable  in  part v.  517 

As  to  guilt  being  established  by  circumstantial  evidence  alone,  .v.  517 

As  to  rejection  of  evidence  irreconcilably  conflicting v.  517 

Refusal  of  cumulative,  not  error v.  517,  vi.  519,  x.    41 

As  to  character  of  offense  an.i  public  sentiment v.  538 

— -  As  to  presumption  of  innocence v.  360 

As  to  credibility  as  a  witness  of  a  co-defendant vi.  213 

Single,  need  not  embody  whole  law  of  case vi.  461,  570 

As  to  "  disbelieving  as  jurors  if  you  believe  as  men". .  .vi.  570,  ix.  377 

As  to  failure  of  accused  to  testify vi.    88 

Where  written,  are  given  court  should  not  make  oral  prefatory 

statements vi.  416 

As  to  degree  of  crime,  when  proper vi.  418 

Should  not  comment  on  facts vi.  418 

Giving  additional,  after  retirement  of  jury vii.    80 

Limiting  scope  of  charge  can  not  be  complained  of  by  accused. vii. 

What  considered,  as  to  fact vii. 

Omitting  the  words  "beyond  a  reasonable  doubt"  not  erroneous, 

vii. 


113 
126 


when. 


126 


128 
338 
877 
377 


Failure  to  give,  as  to  presumption  of  innocence  and  "  reasonable 

doubt "  not  ground  for  reversal  when vii. 

As  to  circumstantial  evidence vii. 

Proper,  in  murder  by  poison vii. 

When  the  court  in,  should  define  words vii. 

Stating  chloroform  to  be  a  poison,  must  also  state  that  jury  must 

find  that  it  is  a  poison vii.  377 

As  to  motive ^H'  877 

jVote  on,  properly  defining  reasonable  doubt vii.  436 

As  to  presumption  of  intent vii.  439 

ExplicitneBS  of,  in  specifying  the  means  of  death vii.  533 

As  to  knowledge  of  president  of  insolvency  of  bank. . .  ix.  103 

44 


690 


INDEX  TO  VOLS.  I  TO  X. 


INSTRrCTIONS-Co«/iHH«Z.  paor. 

As  to  a  reasonable  doubt  touchins;  a  particular  fact.  ...ix.  WC,  x.  40,  57 

On  trial  for  conspiracy  to  defraud x.  101 

That  reasonable  doubt  must  attach  to  the  whole  of  the  evidence 

and  not  to  any  particular  fact x.    T)? 

As  to  hypothesis  consistent  with  innocence x.  02,  199 

Directing  attention  to  testimony  of  particular  witness,  properly 

refused ix.  190 

As  to  alibi ix.  199 

Cautioning  jurors  as  to  certain  testimony  improper ix.  199 

In  seduction  case ix.  614 

Where  specific,  not  required ix.  003 

Defining  concubinage ; x.      3 

In  araon  case x.    25 

Must  be  based  on  evidence,  Jinte x.    30 

Error  in,  cured  by  recall  of  jury  and  correcting  defect x.     HH 

Defining  "  assault"  and   "  battery  " x.    41 

Retiuisites  of,  defining  moral  certainty x.    40 

— —  Misleading  as  to  reasonable  doubt x.    57 

On  trial  under  two  counts,  one  assault  with  intent  to  rnunlcr— the 

other  assault  with  intent  to  rob x.    57 

Note  on,  defining  asuault  u'ith  intent  to  rape x.    70 

In  bastardy  ca.se x.    90 

— —  Note  on  time  of  presenting,  x.  liW 

In   burglary  case x.  140 

Note  on,  not  covering  whole  issue x.  317 

Defining  insjuiity x.  3'29 

Misleading,  in  justifiable  homicide  ca.se x.  403 

In  self-defense x.  479 

INTENT. 

Evidence  of,  in  adultery  proporlj-  excluded i.    42 

In  assault  with  intent  to  murder  there  nmst  be  an,  to  kill  person 

assaulted i.  249 

In  burglary,  question  of  fact  for  jury i.  300 

Inferring,  from  the  act i.  219 

To  constitute  a  crime  there  must  be  a  criminal, i.    42 

Felonious,  in  larceny i.  378 

—  Special,  must  be  pleaded,  proved  and  found ii.  031 

Conspirators  held  responsible  although  they  did  not  intend  to  com- 
mit the  particular  crime iv.  296 

Assault  with,  to  murder  a  person  other  than  the  one  intended . .  iv.    60 

One  concealing  property  known  to  be  stolen  with  intention  to 

save  himself iv.  338 

In  prosecution  for  cruelty  to  animals,  of  accused  in  killing  them 

should  be  considered iv.  146 

In  prosecution  for    sale   of   cattle  under  quarantine  belief  of 

accused  that  quarantine  had  been  removed  may  be  shown iv.  178 

On  trial  for  selling  obscene  photographs,  of  defendant  in  selling 

not  an  element  in  determining  his  guilt iv.  453 

Indecent  exposure  intentionally  made iv.  272 


AMERICAN  CRIMINAL  REPORTS.  691 

I'STT.^T— Continued.  „.„„ 

FAUE. 

GfKMl  faith  of  publisher  in  libpl  caao j^    Kia 

Must  be  criminal,  to  constitute  olfense  of  receiving  stolim  goods. 

iv.  534 

In  burglary  inferred  from  circumstances y.    fli 

Proof  of  felonious,  in  assault  with,  to  rob yi     51 

Where  accused  wa«  heli)lessly  drunk yj    j^o 

Fraudulent,  not  necessarily  shown  by  false  representations vi,  249 

Presumptions  as  to vi.  4;{1,  vii.  439 

Note  on,  to  commit  a  vieie  assault  or  an  offense  of  a  higher 

C"""'** vi.  435 

To  defraud  must  be  alleged  in  indictment  for  forgery vi.  266 

Unlawful,  not  an  essential  ingredient  of  the  crime  of  illegally  sell- 
ing liquor vi,  335 

In  doing  an  idictable  act  which  is  merely  malum  prohibitum  when 

done,  is  a  constituent  part  of  the  offense vii.  288 

When  accused  may  show  he  had  no  evil, vii    288 

As  establishing  crime  of  larceny vii.  338 

Note  on,  to  pcrmancutbj  deprive  owner  of  his  property vii.  345 

Statutory,  delined vii.  309 

Note  on  intent  as  the  gist  of  the  crime vii,  441 

One  who  intentionally  commits  a  crime  is  criminally  responsible 

for  consetjuences  even  though  act  results  differently  than  accused 

intended x.    67 

Note  on,  in  assault  tcith  intent  to  commit  rape x.    70 

Note  on  criminal,  in  offense  of  currying  concealed  weapons x.  168 

INTOXICATING  LI(|UOUS. 

Pharmacists  can  not  sell,  to  others  to  be  compounded  by  them  with 
medicin<« ..iv.  299 

Single  sale  of,  without  license  indictable iv.  300 

Contra v.  329 

New  Jersey  •'  Malt  Liquor  Act"  construed  with  reference  to  town 

charters ' iv.  300 

"  Regulation  "  and  "  prohibition  "  distinguished iv.  300 

Act  of  1875,  prohibiting  sale  of,  on  Sunday  does  not  by  implica- 
tion repeal  act  of   1855  (Pennsylvania) iv.  304 

Under  statute  prohibiting  sale  of,  by  retail  in  less  quantities  than 

one  gallon,  the  delivery  of  the  same  must  not  be  in  different  pjur- 
cels iv.  479 

In  prosecution  for  selling,  without  license  secondary  evidence  in- 
competent to  show  defendant  had  no  permit iv.  485 

Indictment  must  aver  sale  was  not  made  for  medical  purposes, 

etc iv.  278 

Requisites  of  complaint  ^against  owner    for  permitting  illegal 

sales  of,  in  his  building v.  322 

Physician  without  permit  can  not  furnish,  as  a  medicine  (Kansas) 

V.  324 

Evidence  of  other  sales  on  same  occasion  as  that  charged  admissi- 
ble  V.  330 


i! 


602 


INDEX  TO  VOLS.  I  TO  X. 


INTOXICATING  LIQUORS-Co«//.jHwi.  paoe. 

Power  of  agent  to  make  sale y.  8;i0 

— —  Guilty  knowledRe  not  eHsential  to  offensi>  of  unlawfully  selling.. v.  iVi'] 

— ^  Where  seller  believes  minor  is  an  adult  lie  is  not  guilty v.  ;j;{(i 

Right  of  defendant  to  show  sucli  nuitters  in  defense v.  aiJU 

—  Jurisdiction  of  district  court  over  criminal  prosecutions  for  viola- 
tions of  prohibitory  law  (Kansas) vi.  29i) 

Prosecution  may  be  by  information  filed  by  county  attorney. .  .vi.  299 

— —  Clerk  may  issue  warrant  on  such  sworn  information  stating  an 

offense vi.  299 

— —  Information  sworn  to  by  a  citizen  need  not  be  verified  by  oath  of 

county  attorney vi.  299 

——  Note  on  conviction  and  nentence  under  each  count  of  an  infoiitia- 

tion  charging  four  separate  viulationsin  four  separate  counts vi.  300 

— —  Stating  time  in  information  when  olfense  was  conmiitted vi,  299 

—  Kind  of,  or  person  to  whom  sold  need  not  be  stated  in  informa- 
tion   vi.  299 

Conviction  under  information  not  verified  by  county  attorney,  .vi.  299 

— —  Evidence  as  to  who  was  proprietor  and  c;ontrolled  premises  de- 
scribed in  indictment  proper vi.  307 

— —  Unlawful  sale  of,  by  clerk  or  agent  of  anotlier vi.  307 

—  Carrier  is  the  agent  of  the  seller  for  purpose  of  delivery  and  col- 
lection where,  are  sent  C.  O.  D vi.  319 

— —  Note  on  party  having  license  for  sale  of,  in  one  town  selling  in  an- 
other  vi.  328,  X.  346 

— —  Intention  of  the  parties  determined  whether  or  not  and  when  legal 

title  of,  sold  passes  from  vendor  to  vendee vi.  319 

Confiscation  of,  kept  for  unlawful  purposes vi.  319 

Sufficiency  of  indictment  to  bring  offense  charged  within  statute 

against  nuisances vi.  329 

Note  on  sufficiency  of  description  of  premises  in  information, . .  vi.  331 

License  to  sell,  not  transferable vi.  331 

• Under  Iowa  code  proprietor  not  guilty  of  nuisance  on   account  of 

unlawful  sale  of,  by  clerk vi.  335 

Note  on  liability  of  master  for  unlawful  sal's  of,  by  servant  tvhen 

forbidden  by  him vi.  339 

— —  Proof  of  sale  charged  at  time  alleged  sufficient vi.  339 

Chapter  140,  Act  of  1887,  amendatory  to  Maine  Prohibitory  Liquor 

Law,  construed vii.  291 

Requisites  of  indictment  for  violating  a  local  option  law vii.  29-t 

See  Note x.  346 

What  constitutes  sale  of,  to  minors vii.  297,  viii.  399 

Note  on  sale  of,  to  minors vii.  299 

Requisites  of  indictment  for  selling,  to  minors vii.  297 

— —  Effect  of,  in  "  bitters  "  determines  whether  or  not  its  sale  is  a  vio- 
lation of  a  prohibitory  law viii.  404 

Proof  of  intoxicating  character  of  "bitters "and  of  its  use  by 

many  as  a  beverage,  competent viii.  404 

•—  What  constitutes  a  surrender  of  the  jurisdiction  of  a  justice  in  a 
prosecution  upon  a  complaint  for  violating  the  excise  law  (New 
York) viii.  410 


AMERICAN  CRIMINAL  REPORTS.  993 

INTOXICATING  LIQUORS-CoHhuued.  paoe. 

Sale  by  steward  of  a  club  to  a  person  not  a  member viii.  410 

Liability  of  husband  for  maintenance  by  wife  of  liiiuor  nui- 
sance  X.  837 

Power  of  lefijislature  to  regulate  sale  of x.  340 

Regulation  of  sale  of,  by  town  ordinance x.  341 

JEOPARDY. 

Where  prisoner  has  once  been  put  on  trial  for  manslaughter,  jury 
sworn,  and  witnesses  examined  he  has  been  put  in,  and  if  judge  dis- 
charges jury  without  assent  of  defendant  without  submitting  case 
to  them  this  is  a  bar  to  sub8e<iuent  indictment  and  prosecution  for 
same  act i.  607 

Nolle  proa  on  indictment  for  larceny  while  trial  is  going  on  is  a  bar 

to  prosecution  on  indictment  for  burglary  in  the  same  transaction. .  i.  610 

Unnecessary  discharge  of  one  juror  against  objection  of  defend- 
ant on  trial  for  felony  is  a  bar  to  further  prosecution i.  520 

Discharge  of  disagreeing  jury  in  defendant's  absence  good  plea  in 

bar i.  529 

Where  after  trial  for  homicide  jury  while  respondents  were  absent 

returns  verdict  of  voluntary  manslaughter,  and  the  same  is  set  aside 
on  respondent's  motion  plea  of  former,  good  when  arraigned  for  sec- 
ond trial i.  533 

After  defendant  has  been  legally  put  on  trial  unnecessary  dis- 
charge of  jury  without  having  rendered  a  legal  verdict  works  an  ac- 
quittal  i.  533 

Special  plea  to  indictment  of  autrefois  convict  without  jurisdiction 

is  bad i.  543 

Acquittal  of  murder  no  bar  to  conviction  of  assault  for  same  act.  i.  511 

Conviction  of  a  breach  of  the  peace,  a  bar  to  prosecution  on  indict- 
ment for  assault  and  battery  for  same  act i.    65 

Acquittal  of  one  party  of  incest  is  a  bar  to  prosecution  of  the 

other, i-  35* 

Where  a  conviction  has  been  set  aside  because  the  evidence  war- 
ranted an  acquittal  defendant  can  not  again  be  put  in,  for  the  same 

offense ii.  64,  iii.  26,70 

See  Note "•  «7,  iii.  73 

On  a  new  trial  defendant  can  not  be  convicted  of  a  higher  degree 

of  murder  than  he  was  on  the  first .»»•  430 

Constitutional  provision  that  one  shall  not  twice  be  put  in,  for 

same  offense  construed • — ii.  430 

Plea  of  former  acquittal  though  defective  should  be  sustained  if 

the  record  contains  all  necessary  to  sustain  it .ii.  430 

Conviction  of  a  misdemeanor  before  a  justice  a  bar  to  prosecution 

on  indictment  for  same  offense "•  596 

Acquittal  for  maliciously  shooting  and  wounding  a  horse  no  bar  to 

an  indictment  for  shooting  with  intent  to  kill  a  human  being,  although 
both  offenses  were  committed  in  same  transaction ii.  427 

Conviction  under  ordinance  "  for  disturbing  the  peace"  no  bar  to 

indictment  under  statute  for  assault  and  battery  committed  at  same 

..  ii.    51 

tuno 


691 


INDEX  -^O  VOLS.  I  TO  X. 


JEOPARDY—ConMniecd.  paqe. 

Conviction  of  potty  larceny  of  a  hat  is  a  bar  to  indictmont  for 

larceny  of  same  from  shop ii,  621 

New  trial  granted  defeinliiiit  where  jury  returns  venlict  and  is  dis- 
charged while  ho  is  in  custody  of  ofHcer  in  another  room ii.  630 

Discharge  of  one  charged  witli  felony  on  preliminary  examination 

no  bar  to  second  examination  on  another  complaint  charging  same 
oflfense ii.  618 

Note  on  what  offenses  viust  be  considered  the  "  s(t)ne  " ii.    5;$ 

Acquittal  in  another  state  of  co-conspirators iii.    37 

Former  acquittal  or  conviction  by  court  without  jurisdiction  no 

bar  to  submHiuent  prosecution iii.  149,  iv.  838 

Conviction  for  assault  and  battery  on  one  is  no  bar  to  prosecution 

for  assault  and  battery  upon  another  committed  at  same  time.  i.  511,  iii.  154 
See  Note i  iii.  ifle 

Acquittal  of  charge  of  committing  an  offense  between  tv  \in 

dates  is  a  bar  to  prosecution  for  like  offense  charged  between  .  irst 
date  and  an  intervening  one iii.  143 

. Prosecutor,  by  leave  of  court  striking  case  unconditionally  from 

docket  in  defendant's  absence  is  a  bar  to  subsequent  prosecution  on 
that  indictment iii.    22 

Where  accused  refuses  to  object  to  a  juror  whose  lncf)inpetency  is 

ascertained  after  impaneling  and  swearing  of  the  jury,  and  tho 
court  on  its  own  motion  discharges  jury  the  accused  has  been  once 
in iv.  309 

Where  the  prosecuting  attorney  after  the  jury  is  sworn  peremp- 
torily challenges  a  juror,  a  new  one  is  chosen  and  the  jury  again 
sworn,  a  conviction  will  be  set  aside  and  defendant  discharged. .  .iv.  308 

Acquittal  of  a  misdemeanor  punishable  by  fine  only  no  bar  to 

subsetiuent  prosecution iv.    30 

When  a  reversal  of  a  former  conviction  for  murder  is  no  bar  to 

a  subsequent  trial  for  manslaughter  on  the  same  indiitment. . .  .iv.  2.j4 

Plea  of  guilty,  where  no  complaint  is  made  no  bar  to  prosecu- 
tion  iv.  320 

What  identity  of  the  offenses  charged  is  necessary  to  support  the 

plea  of iv,  290,  338 

Whether  a  former  acquittal  in  another  county,  a  bar  to  a  second 

prosecution iv.  338 

Where  defendimt  convicted  under  defective  information  moves 

for  and  obtains  a  new  trial,  he  waives  his  right  to  plead  former — 
motio> .  in  arrest  of  judg»nent  made  and  granted  same  effect v.    66 

When  a  nolle  pros  maybe  entered  without  prejudice  to  future 

prosecution v,    06 

Defendant  has  not  been  put  in  jeopardy  when   he  was  placed  on 

trial  for  murder  and  the  discover}'  not  made  until  after  one  witness 
was  examined,  that  none  of  the  witnesses  had  been  examined  by  the 
grand  jury,  and  that  he  could  be  tried  a  second  time  upon  an  indict- 
ment p'-operly  found v.  339 

Conviction  or  acquittal  of   the  murder  of   one  of   two  persons 

though  the  killing  of  both  be  by  the  same  act  does  not  avail  as  a  plea 
of  ouL .  in,  in  a  prosecution  for  the  murder  of  the  other v.  480 


AMERICAN  CRIMINAL  REPORTS.  (J95 

JEOPARWY-  Con <iH«(Yl.  j,^^^ 

Jury  in  felony  cnao  discharged  for  error  of  court,  nltliough  dcfond- 

ant  consented  to  said  error, yi     jjj^q 

Note  on  esHentiala  of  a  pica  0/  fonnvr  jco/HH-dy .'..'.'.  ...v'l.  i{45 

Attacliea  wlu-n  jury  is  impaneled  and  sworn vi.  a3i) 

Ac(juittal  for  Htealins  cattle  not  a  bar  to  an  indictment  forolituin- 

ing  property  under  false  pretenses  hy  trailing  the  same  cattle  for  it.  vi.  2r>:\ 

One  act  constituting  two  offenses j^.  i^o 

There  must  be  manifest  necessity  for  the  disclinrge  of  a  jury  in  a 

felony  case  before  verdict  to  divest  defendant  of  the  plea  of  former, 

at  a  second  trial ix,  oqj) 

Setting  aside  indictm^^nt  on  motioA  of  an  extradited  person  does 

not  operate  as  an  actpiittal jx,  303 

Note  on  record  showing,  or  siU  nt  an  to,  dcfciuhtnt'H  vuniient  to  din- 

charuc  of  jury ix.  006 

Wlien  setting  aside  verdict  and  judgment  does  not  operate  as  a 

discharge ix.  719 

JOINT  DEFENDANTS. 

Note  on  effect  of  indictment  against  several x,    23 

Note  on  ci'idence  adiniHsible  againut  one  of  two,  admisHible  on  trial 

of  both  Jointly,  though  inadmissible  against  the  otlier x.  206 

JOINT  OFFENSES. 

An  assault,  committed  by  one  while  another  is  assisting  him  in  a 

lawful  act  is  not  a iii,      6 

Where  in  a  murder  case,  no  combination  is  shown  between  defend- 
ants and  others  of  liis  party  and  it  is  doubtful  which  one  killed  the 
deceased,  the  killing  is  not  a iii.  343 

JUDGE. 

Relationship  of,  to  prosecutor  by  marriage  not  a  disqualification.!.  173 

Authority  of,  can  not  be  questioned  by  a  private  pei-son iv.  379 

May  sign  day's  proceedings  in  order  book  at  next  term  nunc  pro 

tunc x.    93 

Signature  of.  to  such  proceedings  need  not  be  made  in  presence 

of  one  convicted x.    93 

Note  on  powej'  of,  to  sunpend  or  modify  sentence x.    96 

Lecturing  jury  for  not  agreeing x.  140 

See  Note x.  347 

Note  on,  becoming  too  emphatic x.  421 

Improper  remarks  of x,  432 

Giving  accused  time  to  prepare  his  preliminary  defense  within  dis- 
cretion of  trial X.  456 

JUDGMENT. 

Ex  post  facto  laws vili.  418 

Execution  of  criminal viii.  418 

JUDICIAL  NOTICE. 

Courts  take,  of  day  of  week  or  month iv.  570 

Courts  will  not  take,  of  city  ordinance iv.  470 


t  i 


696 


INDEX  TO  VOLS.  I  TO  X. 


JURISDICTION.  PAGE. 

Of  acts  in  another  state i.  567 

In  abduction  of  female  child  to  another  state iv.      1 

Of  state  court  where  crime  was  committed  by  United  States  ofH- 

cer  at  a  federal  election iv.  157 

Over  navigable  stream iv.  249 

Justice  of  peace  has  no,  until  complaint  is  filed iv.  820 

Acquittal  of  a  crime  by  a  court  Jiaving  no,  is  no  bar  to  subsequent 

prosecution  in  a  court  having iv.  338 

In  prosecution  for  obtaining  money  by  false  pretenses  lies  where 

the  money  was  obtained iv,  591,  vi.  259 

Of  crimes  conmiitted  within  a  federal  fort v.  343 

How  question  of,  may  be  raised vi.  346 

Construction  of  statutes vi.  346 

Of  district  court  in  criminal  prosecutions  for  violations  of  prohib- 
itory law  (Kansas) vi.  299 

Over  offense  of  receiving  stolen  property vii.  301 

Note  on,  where  goods  are  obtained  by  false  pretenses  by  means  of      ' 

a  letter vii.  304 

State  court  has,  of  an  indictment  against  an  officer  of  a  national 

bank x.    71 

JUDGE  AND  JURY. 

Error  to  charge  jury  that  they  are  in  no  sense  judges  of  the  lu  w  (Ga. ) 

ii.  45 

Erroneous  overruling  of  challenge  for  cause  not  reversable  error 

when ii  322,  v.  20 

Error  without  prejudice  state  peremptorily  challenging  juror  after 

having  accepted  him ii.  251 

Defendant  in  criminal  case  can  not  waive  right  to  legal  jury  ii.  441 

Contra ii.  626 

Undue  urging  of  jury  by  judge  to  agree  should  not  be  tolerated  ii.  449 

Right  of  accused    to  accompany    jury  viewing   locality  of   the 

crime  (Benton  v.  State,  30  Ark.  328) ii.  454 

Juror  separating  from  jury  ground  for  new  trial ii.  421 

Verdict  will  not  be  set  aside  for  improper  talk  of  jurors  on  mat- 
ters outside  of  the  record ii.    13 

Sheriflf  treating  jury  in  saloon,  trial  pending,  not  sufficient  ground 

for  setting  aside  verdict ii.  263 

Members  of   jury  dining  in  separate  rooms,  not  ground  for  new 

trial ii.  263 

One  who  has  formed  or  expressed  opinion  that  accused  killed  de- 
ceased is  incompetent ii.  423 

One  who  has   impression   not  amounting  to  an  opinion,  compe- 
tent     ii.  454,  V.  256 

Trial  judge  may  examine  jurors ii.  454 

That  a  juror  can  not  read  or  write,  not  a  legal  objection ii.  454 

One  who  has  formed  opinion  must  swear  positively  that  he  will 

render  an  impartial  verdict  on  testimony  to  become  competent.  ..ii.  424 

When  error  to  overrule  challenge  for  cause,  although  juror  swears 

he  can  render  impartial  verdict ii.  251 


AMERICAN  CRIMINAL  REPORTS. 


697 


JUDGE  AND  3Vn\—Contimied,  p^gj,^ 
Note  on  what  opinion  sufficient  to  render  a  person  incompetent  as 

^■"'•O'' ii.  263 

Verdict  by  jury  of  thirteen  set  aside j.  577 

Jury  must  take  law  from  tlie  court  (Mich.) i.  618 

Note  on  how  far  jury  considered  judges  uf  the  Mo ii.    50 

Le^al  right  of  defendant  to  poll  the  jury i.  564,  v.  599 

After  acceptance  and  impaneling  right  of  peremptoty  challenge 

gone  (Texas) i_  33O 

Examination  of  juror  on  voir  dire  on  trial  for  unlawful  sale  of  in- 
toxicating liciuor i_  573 

Allowing  documentary  evidence  in  jury  room i.  311 

Strangers  passing  througli  j)iry  room  does  not  vitiate  verdict i.  251 

Affidavits  of   jurors  admissible  to  show  nothuig   improper  oc- 
curred during  consultation i.  251 

Waiver  of  jury  in  misdemeanors i.  505 

'—  Jury  judges  of  law  and  fact  (Ind.) iii.    37 

How  far  jury  judges  of  law  (Ind.) iii,  299 

Where  it  was  error  to  admit  certain  evidence  to  go  to  jury  the 

error  could  not  be  cured  by  instruction iii.  357 

Defining  time  in  one  charge  and  certainty  in  another  not  error.iii.  405 

Judge  should  not  emphasize  impeaching  evidence iii.  405 

Warning  jury  as  to  strained  construction  of  complainant's  testi- 
mony  ; iii.  405 

That  jury's  duties  were  simple  not  borne  out  by  the  giving  of  seven- 
teen instructiors iii,  233 

Instructing  jury  as  to  presumption  of  guilt iii.  244 

Omission  in  charge  to  jury  where  no  retjuest  to  charge  is  made.  iii.  297 

Expression  of  opinion  as  to  guilt  by  judge iii.    30 

Prejudicial  remarks  by  judge  as  to  jury  agreeing iii.  100 

Unwarranted  re<iuests  to  charge iii.  379 

Where  opinion  not  ground  for  challenge iii.  165 

Discharge  of  juror,  when  not  error iii.    92 

— —  Excusing  juroi*8  before  case  is  reached iii.  225 

Note  on  cvcusiug  jurors iii.  228 

Waiver  of  jury  (Ala.) iii.  238 

Note  on  u-aivcr  of  legal  jury  by  defendant iii.  241 

Challenging  jurors  where  two  or  more  defendants  are  being  tried 

together i'i-  142 

Under  code  as  well  as  at  comm""  law  juror  nmst  swear  unetjuiv- 

ocally  that  his  verdict  will  not  be  influenced  by  preconceived  opin- 

iv.  312 


ion 

Allowing  challenge  for  implied  bias iv. 

Conscientious  opinions  against  capital  punishment  as  ground  for 

chr.ilenge iv.  375,  v, 

Opinion  formed  from  hearing  or  reading  rejwrt  of  crime,  no  dis- 
qualification  iv.  r)42,  vih.  669,  ix. 

Defendants  tried  jointly  entitled  to  but  single  challenge. .  .iv.  542, 

vii, 

Mistake  of  juror  as  to  his  qualifications,  when  ground  for  new 

trial iv.527,  v. 


375 


499 


383 


304 


256 


TtlEIS  jFi  9 


698  INDEX  TO  VOLS.  I  TO  X. 

JUDGE  AND  SVny-Continued.  page. 

Drawing  of  jury  (Mich.) iv.  i{57 

Requisites  of  responses  of  jury  when  polled  in  intirder  case . . . .  iv.  415 

Remote  interest  as  to  accessory  as  cause  for  challenge v.    20 

Essentials  of  oath  administered  to  jury  (Colo.) v.    20 

Inquiry  into  motive  not  permissible  when  polling  jury v.    43 

Following  statutory  form  of  oath v.    63 

Judge  to  decide  as  to  necessity  of  venire v.    63 

Rumor  not  the  basis  of  a  disqualifying  opinion v.  113 

Right  of  peremptory  challenge  exists  until  jury  is  accepted  vNeb.) 

V.  486 

Questions  as  to  qualifications  of  juror  within  discretion  of  trial 

judge V.  .517 

Defendant  entitled  to  but  one  categorical  answer  from  each  juror 

when  polling  jury  v.  477 

Challenge  to  the  array  (Tex.) v.  477 

Decision  of  trial  judge  uiwn  question  of  misconduct  of  jury,  con- 
clusive  V.  517 

As  to  jury  drawn  before  taking  effect  of  law,  changuig  district. v.  ."iiiS 

Admonition  to  jury  before  separating  need  not  be  repeated v.  538 

Permitting  jury  to  separate  at  any  time  before  finally  retiring 

proper  (Kans.) v.  5ii8 

Jury  iissuming  property  stolen  has  value .v.  105 

Record  need  not  show  copy  of  list  of  jurors  was  served  on  defend- 
ant  vii.  300 

Note  on  how  far  jury  are  judges  of  the  law  (IlUnoiii) v.  Oil 

» Refusing  new  trial  on  affidavits  as  to  disqualifications  of  juror,  vi.  349 

Disqualification  of  juror  to  sustain  motion  for  new  trial  must  have 

been  unknown  to  defendant  until  after  jury  was  impaneled vi.  349 

Note  on  disqualification  of  juror  suggested  by  his  answers vi.  353 

Requisites  of  qualification  to  act  as  a  juror  for  one  not  yet  a 

citizen vi.  .349 

Reading  newspapers  not  a  disqualification vi.  436,  4H7,  .570 

Jurors  accepted  by  defendant  after  exhausting  peremptory  chal- 
lenges   vi.  570 

Jurymen  not  permitted  to  impeach  their  own  verdict vi.    33 

Number  of  peremptory  challenges   allowable  when    indictment 

contains  several  similar  charges vi.  307 

Challenge  to  the  array  (N.  Y.) vi.  ■'")34 

Province  of  court  and  jury  (Minn.) vi.  .538 

After  verdict  of  guilty  on  indictment  containing  two  counts  each 

sufficient  as  an  indictment  for  simple  larceny,  the  judge  stating  to 
jury  before  polling,  "  I  suppose  you  meant  to  find  the  prisoner  guilty 

on  both  counts,"  was  error  without  prejudice vi.  407 

Judge  adjourning  term  pending  trial vi.    88 

Whole  panel  summoned  need  not  be  present  when  case  moved,  vii.  .306 

Power  of  judge  to  excuse  jurors. vii.  306 

Order  of  right  to  challenge  within  discretion  of  trial  judge vii.  306 

Ordering  sheriff  to  have  talesmen  present  on  future  day  not 

error vii.  306 

Talesmen  may  be  selected  from  any  part  of  the  county vii.  306 


20 
20 
43 
63 
63 
113 

486 

517 

477 
477 


.V. 

517 

.V. 

538 

.  V. 

538 

Ills 

.V. 

538 

.V. 

105 

vii. 

300 

.V. 

611 

vi. 

349 

avo 

.vi. 

349 

.vi. 

353 

t  a 

.vi. 

349 

4H7, 

570 

lal- 

.vi. 

570 

.vi. 

33 

lent 

.vi. 

307 

.vi. 

534 

.vi. 

538 

'ii'li 

,'  to 

lilty 

.vi. 

407 

.vi. 

88 

vii. 

306 

vii. 

306 

vii. 

306 

not 

vii 

306 

vii 

306 

AMERICAN  CRIMINAL  REPORTS.  qqq 

JUDGE  AND  J\]RY -Continued.  p^Q^. 

Ordering  talesmen  when  part  of  original  panel  do  not  answer,  .vii.  806 

Defendant  entitled  to  two  days'  service  of  tales,  (N.  J.) vii.  300 

Failure  of  some  tales  to  respond  no  ground  for  exception vii.  306 

Jury  considering  improper  evidence vii.  171 

That  one  talesman  is  exempt  from  duty  no  ground  of  exception  vii.  308 

Drawing  of  jurors  must  be  in  presence  of  court  (N.  J.) vii.  306 

Judge's  duty  to  try  challenges vij,  303 

His  decision  only  reversable  when vii.  306 

Opinion  of  juror  formed  m  prior  case  between  same  parties  not  a 

disqualification  in  another  case  at  same  term vii.  306 

Exclusion  from  panel  of  juror  objected  to  by  one  defendant  whom 

co-defendant  deserves  to  retain  no  ground  for  exception vii.  304 

Record  need  not  show  form  of  oath  administered  to  jury vii.  377 

Objection  to  irregularity  of  oath  must  be  taken  at  time  of  admin- 
istering   vii.  377 

Disqualifying  opinion  defined vii.  428 

Affidavits  and  counter-affidavits  as  to  competency  of  juror vii.  503 

Sickness  of  juror  for  short  time  after  final  retirement  not  ground 

for  setting  aside  verdict vii.  502 

Jurors  declaring  on  voir  dire  they  would  not  convict  on  circum- 
stantial evidence  alone  does  not  make  them  incompetent vii.  533 

As  to  number  of  challenges  defendant  entitled  to  (Ohio) viii.    19 

Opinion  of  juror  formed  from  report  of  circutnstance  of  crime  re- 
lated by  one  knowing  them viii.    19 

Jury  in  cliarge  of  bailiff  attending  prayer  meeting  before  argu- 
ments were  finished,  ground  for  new  trial viii.  426 

Verdict  vitiated  by  jury  drinking  liquor  while  deliberating. .  .viii.  434 

Verdict  will  be  set  aside  for  improper  separation  of  the  jury.  .ix.  626 

Any  prejudicial  irregularity  or  misconduct  of  jury  during  trial 

raise.s  presumption  that  accused  was  thereby  prejudiced ix.  626 

Te.stimony  of  jurors  admissible  to  disprove  or  explain  verdict,  .ix.  626 

Mere  business  conversation  by  juror  with  anotlier  person  will  not 

avoid  verdict ix.  626 

Not  proper  to  ask  venireman  whetlier  he  would  convict  on  cir- 
cumstantial evidence ix.  388 

Statute  making  jury  judges  of  the  law  unconstitutional  (Vt.).  .ix.  536 

Juror  with  fixed  opinion  as  to  guilt  of  principal  not  competent  to 

sit  on  trial  of  accessory x.    46 

Excusing  juror  after  jury  is  completed  and  before  indictment  is 

read ^-    ^'^ 

Defendant  not  allowed  to  examine  jurors  pronounced  competent 

on  voir  dire ^'    '^^ 

Note  on  mincondiwt  of  court  and  jiwy x.  138 

Province  of  court  and  jury  as  to  law  (U.  S.) x.  168 

Excluding  colored  citizens  from  juries x.  243 

"Impartial  jarors"  defined x.  347 

Note  on  competency  of  jurors  .,x.  397 

Trial  by  jury  (N.  H.) x.  398 


11 


700  INDEX  TO  VOLS.  I  TO  X. 

JUSTICES  OF  THE  PEACE.  page. 

No  jurisdiction  until  complaint  is  filed iv.  330 

Plea  of  guilty  before,  wnen  no  complaint  is  filed  no  bar  to  prose- 
cution  iv.  320 

KIDNAPPING. 

Intent  to  unlawfully  detain  or  conceal  child  must  accompany  act 

of  taking vi,  352 

—  Note,  distinguishing,  and  false  imprisonment vi.  355 

What  constitutes  false  pretenses  in vii.  314 

Count  in  indictment  for,  not  alleging  fraudulent  intent  bad.  .viii.  458 

Second  count  charging  that  the  felonious  and  fraudulent  arrest 

was  made  with  the  felonious  and  fraudulent  intention  of  carrying  A 
from  his  residence  is  good viii.  452 

LABOR  UNIONS. 

Members  of,  conspiring  to  prevent  non-imion  w^orkman  from  ob- 
taining employment x.  227 

SutHciency  of  indictment  charging  members  of,  with  conspir- 
acy  X.  227 

Secretary  of  a,  who  recorded  minutes  of  meeting  of,  at  which 

the  case  of  prosecuting  witness  was  considered  held  a  conspirator... x.  227 

Note,  on  combinations  among  workmen— lawful  and  unlawful,  .x.  240 

Prosecution  of  members  of,  for  conspiracy  to  drive  a  non-union 
mechanic  out  of  his  employment x.  227 

Note  on  lawful  and  unlawful  means  rsed  by,  to  increase  or  main- 
tain tcages x.    24 

LARCENY. 

Where  an  officer  of  a  bank  holding  a.  note  against  defendant  for 
collection,  called  upon  him  for  payment  and  let  defendant  have  note 
to  look  at  at  his  request  and  he  secreted  or  destroyed  it,  if  defendant 
obtained  iiossession  of  the  note  with  felonious  intent  the  act  was. .  .i.  378 

Note  on,  committed  where  prosecutor  voluntarily  parts  icith  pos- 
session of  his  property i.  393 

Note  on  fraud  stratagemor  stealth  as  essential  elementsof, i.  403 

Intent  of  defendant  to  deprive  owner  of  his  projierty  and  to  gain 

some  advant.age  to  himself  constitutes  felonious  intent i,  378 

"  Taking  "  in,  need  not  necessarily  be  without  the  knowledge  of 

the  owner,  but  may  be  done  openly i.  378 

Fraudulent  taking  of  owner's  property  with  felonious  intent  to 

wholly  deprive  him  of  it  is,  although  defendant  intended  to  make  but 
a  temporary  luje  thereof i.398 

Where  one  steals  property  purposely  exposed  by  the  owner  to  trnp 

him  he  is  guilty  of,  but  if  the  owner  through  an  agent  incite  a  per- 
son to  take  it,  the  taking  is  not i.  418 

Indictment  for,  by  bailee  must  state  bailment  accurately i.  446 

Simple,  and,  from  the  person  distinguished i.  426 

Stealing  property  hanging  at  and  outside  store  door  is  simple,  not, 

from  a  house i.  420 

Stealing  bale  of  cotton  from   alleyway  outside  of    warehouse  is 

simple i.  422 


dant 

.  ..i. 

378 

2)08- 

. .  .i. 

393 

.  ..i. 

403 

gain 

378 

0  of 

...i. 

378 

t  to 

ibut 

i 

.398 

trap 

per- 
...i. 

413 

...i. 

446 

..i. 

426 

not, 

...i. 

420 

se  18 

..  .i. 

422 

AMERICAN  CRIMINAL  REPORTS.  701 

LARCENY— ConKnited.  p^oj. 

Where  defendant  put  his  hand  in  prosecutor's  pocTtet,  drew  hia 

pocicetbook  half  way  out,  being  discovered,  let  it  go  and  ran,  he  was 

guilty  of i  424 

Throwing  goods  off  railway  train  in  motion  with  felonious  intent 

to  appropriate  them  is, i_  433 

If  one  finding  goods,  knowing  or  having  reasonable  means  of  as- 
certaining, who  the  owner    is,  intends  at  the   time  to  appropriate 

them  to  his  own  use  he  is  guilty 1.  416,  ii.  337,  iii.  272 

If  finder  has  no  intent  at  the  time  of  taking  them  into  his  posses- 
sion a  subsequent  conversion  will  not  constitute, i.  416,  v.  366 

One  taking,  and  carrying  away  property  from  the  premises  of  the 

owner  and  afterwards  abandoning  it  without  giving  notice  to  the 

owner  or  any  one  else  where  it  may  be  found  is  guilty  of, i.  398 

Evidence  of  ownership  of  promissory  note  which  has  been  trans- 
ferred by  indorsement i.  878 

Where  indictment  charges,  of  note  state  must  prove  same  to  be  of 

some  value i.  378 

Information  for,  of  note  giving  date  of  making,  name  of  maker 

and  payee,  principal  and  date  of  maturity,  sufficiently  describes  it.i.  378 

Such  substantial  accuracy  as  shall  establish  the  identity  of  the 

note  and  protect  accused  from  another  prosecution  for  same  offense, 

all  required i.  378 

When  defendant  has  destroyed  the  note  he  can  not  dispute  descrip- 
tion  i.  378 

On  a  trial  for,  of  a  |50  bill  evidence  that  defendant  two  months 

afterwards,  when  passing  a  similar  bill,  requested  the  person  to  wliom 

he  paid  it  not  to  say  anything  about  it,  admissible i.  594 

Evidence  that  third  persons  had  opportunity  to  take  property  in 

question  inadmissible i  594 

On  trial  for,  of  money  evidence  that  defendant's  earnings  were 

too  meager  for  him  thus  to  have  secured  such  an  amount  admis- 
sible  i.  594 

Where  agent  of  express  company  in  Illinois  received  money  which 

had  been  collected  by  the  company  for  a  customer  absconds  with  it 
to  Canada,  on  trial  under  statute  against  bringing  into  Canada  prop- 
erty stolen  in  a  foreign  country  will  be  held  guilty  of i.  403 

Possession  of  property  recently  stolen  makes  out  prima  facie  case 

of  guilt i.  432,567 

Evidence  that  defendant  offered  to  pay  prosecutor  value  of  prop- 
erty stolen  and  to  give  constable  money  to  let  him  go,  admissible,  .i.  438 
Possession  of  stolen  property,  though  not  snown  to  be  a  recent  pos- 
session in  connection  with  other  facts  may  sustain  a  conviction  for,  i.  438 

Charge  as  to  effect  of  recent  possession i.  429,  432,  545 

The  North  Carolina  rule  as  to  the  effect  of  the  possession  of  stolen 

property ••  ^^^ 

— :—  Recent  possiession,  question  of  fact  for  juiy  except  where  the  court 

can  say  possession  is  not  recent »•  432,  ii.  372,  vi.  402 

Recent  possession  is  not  of  itself  sufficient  to  justify  conviction,  .i.  436 

Possession  a  week  or  ten  days  after  the,  not  recent i.  487 


i; 


702 


INDEX  TO  VOLS.  I  TO  X. 


LkRCEJiY— Continued.  page. 

Where  possession  does  not  raise  legal  presumption  of  defendant's 

guilt  it  is  merely  a  circumstance  to  be  submitted  to  the  jury  in  con- 
nection with  other  evidence i.  434 

Note  on  effect  of  recent  possession  of  stolen  property  in,  and  kin- 
dred offenses i.  673 

Identity  of  thing  stolen  must  be  precise i.  443 

On  trial  for,  of  money  fact  that  defendant  had  money  other  than 

that  stolen  immaterial i,  444 

Evidence  as  to  bad  character  of  third  parties  who  had  opportunity 

to  take  property  stolen  irrelevant i.  188 

Where  two  conspire  together  to  fraudulently  obtain  the  money  of 

another,  and  through  such  conspiracy  do  obtain  it,  tiiay  are  guilty 
of ii  845 

One  inducing  anotlier  to  loan  him  money  by  fraud  and  fai»e  pre- 
tenses is  not  guilty  of,  but  of  obtaining  money  by  false  pretense. .  .ii.    98 

One  bringing  stolen  property  into  tlie  State  from  a  foreign  coimtry, 

in  the  absence  of  statute  can  not  bo  convicted  of, ii.  319 

Dog  not  subject  of  (Ohio), ii.  338 

Note  on  dog  as  subject  of. ii.  340 

Stealing  a  coffin  or  any  tiling  buried  with  the  deceased  is  (Mo.),,  .ii.  638 

Indictment  for,  of  coffin  should  allege  ownership  in  person  who 

furnished  it  for  burial ii.  638 

Value  of  property  stolen  is  fixed  by  its  price  in  open  market,  ii.  638, 

iv.  348 

Delivery  of  an  accepted  order  is  a  delivery  of  the  subject-matter 

sufficient  to  constitute  the  one  receiving  the  order  a  bailee  and  if  by 
means  of  the  order  he  obtains  the  subject-matter  and  converts  it  to 
his  own  use,  he  is  guilty  of ii.  363 

Stealing  articles  belonging  to  different  persons  at  the  same  time 

and  place  is  but  one  larceny ii,  344,  356 

Proof  that  defendant  stole  one  of  the  articles  is  sufficient ii.  344 

Where  owner  of  property  stolen  is  known  and  his  attendance  as  a 

witness  can  be  procured  his  testimony  that  the  proiierty  was  stolen  is 
indispensable  to  conviction  for, ii.    64 

Where  State  fails  to  procure  owner  as  witness  or  to  show  effort  to 

secure  his  attendance  weak  and  inconclusive,  secondary  evidence  is 
insufficient  to  sustain  verdict  of  guilty. ii.    64 

Error  to  charge  that  from  recent  possession,  if  not  satisfactorily 

explained  or  accounted  for  by  defendant  the  law  presumes  him 
guilty ii.  340 

Note  on  statute  providing  punishment  in  a  State  of  persons  bring- 
ing stolen  property  therein  who  had  committed  a  larceny  in  a  foreign 
country ii.  855 

Conviction  for  simple,  of  hat  a  bar  to  indictment  for,  of  same 

from  shop •. ii.  621 

Indictment  alleging  owne  -ship  of  property  stolen  in  servant  is  bad  • 

although  the  servant  had  f u  I  charge  of  the  premises  from  which 
property  was  taken  and  of  property  also iil.  253 

Note  on  distinction  in  regard  to  the  ownership  of  stolen  property 

between  a  servant  and  one  who  has  special  property  in  goods iii.  255 


IK 


AMERICAN  CRIMINAL  REPORTS.  703 

LARCENY— Confrnwed.  p^^j. 

Of  husband's  goods  by  wife in.  449,  iv,  cOo 

Where  defendant  with  borrowing  intent  took  prosecutor's  hoi-se, 

rode  it  some  distance,  turned  it  loose  headed  towards  home,  thinking 
it  would  return  hither  conviction  for,  can  not  be  sustained iij^  248 

Where  defendant  drove  an  estray  away  from  his  land  wiien  it  first 

came  upon  it,  upon  its  return  kept  it,  he  was  not  guilty  of,  unless  he 
intended  to  appropriate  the  estray  to  his  own  use  when  lie  first  took 
possession  of  it jji   25Q 

Borrowing  property  and  afterward  attempting  to  convert  it  to 

one's  own  use  will  not  sustain  conviction  for,  unless  intent  to  steal 
is  shown  to  have  existed  when  property  was  borrowed iii.  277 

Presumption  of  guilt  from  possession  of  stolen  property  weakens 

as  period  between  theft  and  possession  increases,  and  may  scarcely 
arise  at  all  if  third  persons  had  equal  access  to  place  goods  were 
found iii.  244 

Where  an  information  charges,  in  one  count  from  a  dwelling 

house,  and  in  a  second  count  buying,  receiving,  etc.,  sti)len  property 
knowing  it  to  be  stolen,  and  defendants  gave  evidence  tending  to 
show  an  alibi  it  was  erorr  to  charge  that  the  unexplained  fact  that 
the  property  was  in  their  possession  was  conclusive  evidence  of  their 
guilt  on  the  first  count  to  the  exclusion  of  any  consideration  of  other 
evidence  under  either  count iii.  260 

Suspicious  conduct  of  defendant  in  regard  to  the  stolen  property 

warranting  submission  of,  case  to  jury iii.  326 

In  indictment  for,  omitting  to  give,  or  to  account  for  the  absence  of 

the  first  name  of  the  owner  is  a  fatal  defect iii.  256 

Where  indictment  charged,  of  a  "  Smith  &  Weston  "  revolver  and 

evidence  showed  the  loss  of  a  "  Smith  &  Wesson  "  revolver,  the  vari- 
ance was  material iii.  246 

Neither  taking  nor  conversion  felonious  where  owner  parts  vol- 
untarily with  possession  and  title iv.  323 

Taking  and  conversion  is,  where  owner  parts  voluntarily  only  with 

the  possession  expecting  and  intending  that  the  goods  shall  be  re- 
turned to  him  or  disposed  of  on  his  account iv.  323 

General  owner  guilty  of,  in  stealing  from  special  owner  where  the 

taking  is  felonious iv.  331 

Where  evidence  showed  owner  of  property  had  two  names— a 

business  name  and  a  personal  one,  alleging  ownership  under  his  busi- 
ness name  in  the  indictment  for,  was  sufficient iv.  334 

Name  of  the  owner  not  a  material  part  of  the  offense  of, iv.  334 

Defendant  in,  case  may  be  ti'ied  in  any  county  to  which  he  carries 

the  stolen  property  or  where  it  may  be  found iv.  338 

Receiving  stolen  property  is  triable  only  in  the  county  where 

oflfense  is  committed iv.  338 

A  printed  list  of  names  and  dates  though  a  chattel  is  not  a  subject 

of, • '7-  848 

Sufficiency  of  description  when  property  stolen  is  bank  bills. .  .iv.  491 

One  selling  a  horse  according  to  directions  of  owner  and  after- 
wards absconding  with  the  sale  money  held  guilty  of,  as  bailee. .  .iv.  601 


-if . 


704 


INDEX  TO  VOLS.  I  TO  X. 


lABCENT— Conh'nued.  page. 

Procuring  property  from  another  by  a  series  of  tricks  is iv.  609 

Water  supplied  by  company  to  consumer,  and  standing  in  bis 

pipes  may  at  common  law  be  subject  of  larceny iv.  611 

Distinction  between,  from  the  person  and  robbery iv.  501,  v.  840 

^—  Sufficiency  of  indictment  for  larceny  from  the  person v.  845 

Arraignment  when  comnlaint  contains  several  counts  each  charg- 
ing a  distinct,  of  the  property  of  a  different  person v.  848 

An  indictment  for,  as  bailee  must  be  framed  upon  the  statute  and 

that  fact  must  distinctly  appear  upon  the  face v.  350 

At  common  law — nossession  in  the  accused v.  850 

-^—  A  bailee  can  not  commit  a,  of  the  bailment  while  the  contract 
under  which  he  holds  subsists,  but  when  the  contract  terminates  the 
possession  reverts  to  the  owner  although  the  custody  still  remain 
with  the  bailee v.  850 

A  bailee  in  possession  alone  can  commit, v.  350 

Instruction  on  hypt)thesi3  which  evidence  in,  case  tends  to  prove,  v.  8.50 

Kleptomania  as  a  defense  in  trial  for v.  357 

— . —  Non-expert  testimony  admissible  to  establish  defense  of  klepto- 
mania   V.  357 

.—  "  One  book,  of  the  value  of  |G,  the  personal  property  of  A.  B." 
sufficient  description  in  indictment  for, v.  300 

Defendant  fabricating  testimony  in,  case  may  be  impeached  ...  v.  300 

In,  case  it  is  competent  to  show  possession  of  other  stolen  prop- 
erty  V.  360 

Where  defendant  took  money  from  the  person  of  the  owner,  or 

from  any  place  in  which  he  had  put  it,  without  at  the  time  intend- 
ing to  appropriate  it  to  his  own  use,  a  felonious  intent  subsequently 
conceived  and  executed  would  constitute, v.  866 

Where  the  pi  isoner,  who  had  asked  the  prosecutor  for  the  loan  of 

a  shilling,  received  from  him  a  coin,  both  parties  believing  it  to  be  a 
shilling,  afterward  discovered  it  was  a  sovereign  and  appropriated  it, 
he  was  not  guilty  of,  as  bailee  but  was  of,  at  common  law vi.  355 

^—  The  innocent  receipt  of  a  chattel  coupled  with  its  subsequent 
fraudulent  appropriation  is  not, vi.  388 

Obtaining  money  from  another  by  means  of  legerdemain  with 

marked  cards  is, vi.  403 

Animus  furandi  mutit  exist  at  time  of  taking  to  make  the  of- 
fense,   vi.  392 

——  Possession  of  property  stolen  shortly  after  theft  does  not  raise  pre- 
sumption of  guilt vi.  402 

——  Upon  indictment  for  simple,  conviction  sustained  by  proof,  either 
that  the  property  was  received  with  a  knowledge  that  it  was  stolen 
or  that  ic  was  obtained  by  a  false  token  or  false  pretense vi.  407 

Parties  jointly  implicated  in   a,  may  be  indicted  or  informed 

against  separately vi.  418 

Particular  identification  or  description  of  the  bunk  notes  stolen  not 

essential  to  a  conviction  of, vi.  394 

. Value  of  goods  stolen  may  be  inferred  by  jury  from  inspection  or 

from  description  by  witness vi.  397 


AMERICAN  CRIMINAL  REPORTS.  ,705 

LARCENY-Conhnued. 

PAOE. 
Where  there  are  two  indictments  against  defendant,  one  for  bur- 
glariously entering  a  house  and  committing  a,  by  taking  and  carryine 
away  clothing;  and  the  other  charging  simple,  of  clothing  belonging 
to  another  person,  audit  appears  on  trial  that  all  the  articles  were 
taken  from  the  same  room,  two  separate  and  distinct  larcenies  are 
charged ^..   g^g 

In  indictment  for,  of  clothing  when  proper  to  charge  ow-nership 

in  a  minor ^..    „< o 

Inducing  another  by  trick  or  artiHce  to  part  with  the  possession 

only  of  his  property  is,  provided  it  is  done  with  felonious  in- 
tent... ...... vii.  324,  viii.  463 

iraudulent   substitution    of    a  smaller   promissory  note   for  a 

larger  one  is, ^ jj   004 

At  common  law  indictment  for  robbery  would  not  support  con- 
viction for, yJj   303 

Conviction  of  grand,  upon  indictment  for  robbery  (Ark.) vii.  328 

Note  on  felonious  intent  in yji^  334 

— —  Where  one  obtains  property  from  owner  by  stealth  or  fraud,  with 

intent  to  steal  the  same,  he  is  not  guilty  of,  (Ark.) vii.  338 

Where  the  property  obtained  was  voluntarily  given  by  prosecutor 

to  shield  himself  from  a  threatened  exposure  of  crime  by  defendants, 

the  offense  was  not, vii^  339 

If  evidence  of  defendant  as  to  his  recent  possession  of  stolen  prop- 

perty  creates  a  reasonable  doubt  as  to  his  guilt  he  is  entitled  to  ac- 

quittitl vii,  334 

Note  on  possession  of  stolen  property  as  evidence  of  guilt vii.  336 

It  is,  to  take  property  intending  to  permanently  deprive  the  owner 

of  it  although  the  intention  did  not  include  the  possession  of  the  prop- 
erty for  defendant's  pecuniary  profit vii.  338 

Note  on  intent  to  permanently  deprive  owner  of  his  property,  .vii.  345 

Secrecy  not  the  only  evidence  of  felonious  intent viii.  456 

Conduct  of  accused  as  evidence  of  felonious  intent viii.  456 

In   indictment  for,  ownership  can  be  charged  as  being  in  a 

bailee viii.  456 

Indictment  charging  A  with,  and  B  with  aiding  and  abetting,  not 

bad  for  duplicity viii.  456 

One  dropping  a  brass  disc,  in  lieu  of  a  penny,  into  a  slot  machine 

and  thereby  obtaining  a  cigarette  is  guilty  of  larceny, viii.  469 

Employee  in  custody  of  property  fraudulently  appropriating  it 

guilty  of viii.  473 

—  One  who  finds  bills  lost  in  a  house,  the  owner  or  his  agent  being 
present,  and  fraudulently  converts  them  to  his  own  use  is  guilty  of 

simple viii.  474 

Personal  ornaments  purchased  by  wife  without  authority  of  lii's- 

band  and  afterward  paid  for  by  him  are  community  property  and  her 
consent  to  the  taking  thereof  by  one  knowing  the  facts  would  not 

prevent  such  taking  from  being, viii.  477 

Evidence  suflioiently  showing  felonious  intent  in  such  a  case. viii.  477 

Fact  of  defendant's  adultery  with  wife  relevant  to  show  his  knowl- 
edge that  the  taking  waa  witliout  husband's  consent viii.  477 

45 


706 


INDEX  TO  VOLS.  I  TO  X. 


LAILCESY— Continued.  page. 

Description  of  stolen  property  given  by  witness  must  be  consistent 

with  what  is  stated  in  the  indictment viii.  474 

Proof  of  otlier  larcenies  committed  same  night  admissible ix.  354 

It  is,  where  owner  parts  with  possession  of  his  property  under  a 

contract  induced  by  fraud  not  intending  to  |)art  with  title  until  the 
other  party  has  fulfllled  his  part  of  tlie  bargain ix.  Oil 

Where  one  agrees  to  sell  a  horse  to  another  for  a  certain  sum,  of 

which  a  part  was  to  be  paid  at  once,  which  was  done  and  the  balance 
to  be  paid  upon  delivery  of  the  horse  and  the  vendor  refuses  to  make 
the  delivery  he  is  guilty  of,  by  trick ix.  61 1 

— ^  One  who  receives  more  money  from  the  bank  than  his  check  calls 
for  is  not  guilty  of, ix.  7:)4 

Note  on,  by  trick  or  fraud « ix.  516 

LETTING  FUR  ILLEGAL  PURPOSES. 

Conviction  of  lessor  under  statute  punishins;  owner  of  premises 
knowingly  permitting  them  to  be  used  or  occupied  for  the  purpose  of 
prostitution ii.  378 

— ^  Indictment  for,  need  not  specifically  aver  that  premises  were  in 
fact,  used  for  purposes  of  prostitution ii.  378 

Under  statute  which  punishes  one    who  authorizes  or  permits 

premises  to  be  used  for  sale  of  intoxicating  liquors,  lessor  not  guilty 
of,  when ii.  370 

LEWDNESS. 

Committed  by  wilful  exposure  of  person — evidence    of  similar 

acts ix  303 

Indecent  proposal  as  evidence  of  intent ix.  303 

Note  on  what  constitutes ix.  304 

LIBEL. 

When  indictment  for,  alleges  same  with  sufficient  certainty ii.  381 

Variance  of,  proven  from  that  set  out  in  indictment  can  not  be 

first  raised  on  appeal ii.  381 

One  furnishing  statement  of  facts  to  newspaper  writer  as  guilty  of, 

as  though  he  had  written  and  published  the  article  himself ii.  381 

Criminal  liability  of  publisher  for  act  of  servant ii.  643 

See  Note x.  489 

— —  Privileges  of  the  press — good  faith  of  publisher iv.  516 

— —  Newspaper  article  to  be  libelous  must  refer  to  person  in  such  a 

manner  that  others  reading  it  ^  ill  recognize  to  whom  it  refers v.  309 

Charging  in  published  article  a  prohibition  editor  with  drunkenness 

is  (Kansas), v.  369 

Opinion  of  witness  as  evidence  of  intoxication v.  809 

——  Venue  in  prosecution  for,  against  publisher  of  newspaper  may  be 

laid  in  any  county  where  it  circulates viii.  483 

A  publication  concerning  an  attorney  which  would  tend  to  injure 

his  character  and  reputation  is  a, viii.  483 

Charging  in  public  print  that  attorney  bribed  a  juror  is, viii.  483 

Pleading  truth  of,  as  justification  requires  defendant  to  show  only 

its  substantial  truth  and  that  it  was  published  for  justifiable  ends.  viii.  483 


AMERICAN  CRIMINAL  REPORTS.  707 

LIBEL—Conf/Hued.  p^^jj 

Permitting  counael  for  Stat^  in  orlminal  prosecution  for,  to  reml  to 

jury  Supreme  Court  opinions,  error yiii.  482 

Where  language  used  in,  ia  a  slang  term  witness  permitted  to  ex- 
plain what  ho  understood  it  to  mean ix.  656 

In  indictment  for  defamatory,  not  necessary  to  allege  facts  legally 

inferable  from  other  facts  proven x.  480 

Indictment  for  defamatory,  omitting  to  charge  publication  was 

malicious,  iield  good x.  480 

Note  on  tckat  constitutes,  per  se x.  488 

LICENSE. 

Act  requiring  peddlers  to  obtain  a,  to  sell  products  and  manufac- 
tures of  otlier  states  unconstilutiunal iv,  849 

LIMITATIONS. 

Illinois  statute  of,  construed  as  affecting  indictments  for  burglary 

vi.  414 
How  identity  of  offense  is  shown  to  bring  it  within  statute  of,.vi.  414 

LI<{UOIl  SELLING. 

Sale  of  liciuor  by  club  to  members j.  447 

Giving  away  liquor  as  an  act  of  hospitality  in  a  private  house  is  a 

violation  of  the  statute  (Md. ) i.  460 

Municipal  regulation  of,  by  licensed  taverns i.  457 

Statute  giving  municipal  Ixtards  power  to  regulate,  does  not  con- 
template interference  with  private  family  arrangements  (Eng.),. . .  .i.  457 

Responsibility  of  employer  for  sale  of  liquor  by  servant i,  468 

Criminal  responsibility  of  employer  for  unauthorized  act  of  ser- 
vant  i.  471 

Barkeeper  defined i.  482 

Where  defendant  told  those  to  whom  he  sold  liquor  not  to  drink  it 

on  his  premiseb,  when  he  knew  they  would,  he  is  guilty  of  attempted 

evasion  of  the  law i.  483 

In  prosecution  for,  to  minor  defendants  knowledge  that  purchaser 

was  or  \va8  not  a  minor  immaterial  (Ill.)i i>  471 

Honest  belief  that  minor  was  over  age  a  good  defense  (Ala.) i.  482 

Druggist  selling  liquor  to  minor  on  physician's  prescription  is  guilty 

of  no  otienae  i.  477,  480 

Indictment  for,  to  minor  need  not  allege  defendant  knew  pur- 
chaser was  a  minor i.  471 

In  prosecution  for  selling  liquor  to  be  drunk  on  the  premises  not 

necessary  to  allege  in  complaint,  or  prove  on  trial  that  the  liquor  was 

drank  on  the  premises,  or  anywhere  else i.  483 

Time  is  the  essence  of  the  offense  of  illegal i.  486,  iii.  280 

Where  indictment  charges  sale  of  liquor  to  A,  and  proof  shows 

sale  to  A,  and  B,  jointly  variance  ia  fatal i.  487 

Requisites  of  complaint  for  selling  liquor  to  person  in  the  habit  of 

getting  intoxicated '•  489 

Evidence  of  A,  buying  liquor  of  B,  is  evidence  of  B,  selling  liquor 

to  A »•  465 


if! 


708 


INDEX  TO  VOLS.  I  TO  X. 


LIQUOR  »¥AJAS(i-ContinHe<l.  paor. 

Intoxicating  quality  of  liiiultl  sold  is  a  question  of  fact 1.  400,  490 

See  Note ii.  8«1 

Husband  criminnlly  liable  for  illoKiil,  by  wife i.  405 

— —  Law  prohibiting,  vitiiout  a  license  can  not  Iks  evaded  by  saloon 
keeper's  customers  organizing  a  shaui  assiiciatioii  pretending  to  buy 

him  out,  etc ii,  885 

See  Note ii.  300 

Selling  cigarettes  at  ten  cents  each,  and  giving  a  drink  of  whisky 

with  each  cigarette  purcliaaed  was  a  sale  of  the  whisky ii.  404 

Reluctant  witness  may  lie  plied  with  searching  (juestions ii.  404 

Defendant  proving  that  ho  laid  not  violated  tlie  law  on  other  occa- 
sions no  proof  that  he  had  not  violated  it  at  the  time  charged ii.  404 

Evidence  of  similar  transactions  admissible  in  prosecution  for  ille- 
gal  ii.  404 

— —  One  making  change  on  sole  to  minor  by  another  as  guilty  as 
though  he  had  sold  the  liquor  himself ii.  800 

What  constitutes  unlawful  sale  of  li<iuor  to  a  minor  (III.) v..  "OO 

Illinois  Dram  Shop  Act  not  aimed  against  ordinary  acts  of  hospi- 
tality  ii.  401 

——  Evidence  of  single  unlawful  sale  by  clerk  of  defendant,  a  licensed 
saloonkeeper,  to  a  habitual  drunkard  does  not  justify  conviction...ii.  408 

^—  Instructing  jury  that  they  could  infer  fact  of  sales  from  circum- 
stances and  the  situation  of  defendant,  not  error ii,  892 

Where  children  testify  to  purchasing  lifjuor  at  defendant's  place, 

parent  may  testify  that  they  had  been  sent  there ii.  892 

-^—  On  prosecution  for  selling  liquor  to  a  person  in  the  habit  of  be- 
coming intoxicated  who  lived  in  defendant's  neighborhood  state  may 
prove  his  general  reputation  for  drinking ii,   898 

What  is  malt  liquor,  a  question  of  fact ii.  390 

Indictment  for,  to  minors  charging  the  sale  at  a  certai'   Uhk 

place  to  "  certain  minors,  the  names  of  whom  are  ti  <  '  ho      aid  jurors 
unknown"  charges  but  one  offense ii,  470 

If  the  evidence  shows  that  the  names  of  the  s  were  known 

to  the  grand  jurors,  variance  is  fatal ii,  476 

Note  on  how  far  the  relations  of  principal  and  inji  nt,  witter  and 

servant,  and  parent  and  child  are  affected  criminally  by  th    unlawful 
saleof  liquor ii,  409 

By  servant  of  a  coqwration  to  members  of  the  corporation iii.  287 

Rhode  Island  Courts  take  judicial  notice  of  the  fact  that  lager 

beer  is  a  malt  liquor iii.  282 

Fourth  day  of  July  not  a  legal  hokday  within  the  Indiana  Statute 

forbidding,  on  Sundays  or  legal  holidays iii.  280 

Amendment  to  indictment  for  illegal,  affecting  identity  of  person 

to  whom  defendant  ^^3  alleged  to  have  sold  liquor,  improper ....  iii.  284 

■ Burden  of  proof  as  to  defendant  having  license  for,  is  upon  him  iii.  285 

LOCAL  OPTION. 

Note  on  validity  of,  laws  and  requisites  of  indictment  for  violat- 
ing  X.  846,  847 


AMERICAN  CRIMINAL  REPORTS.  -qq 

LOST  GOODS. 

Where  Hn«ler  of,  knows  or  has  remtonahh.  rnoiinH  of  knowinR  who 
owner  is,  appropriates  tli.'in  to  liiH  own  use,  lie  in  Kuiity  of  larceny  i   416 

Wiiere  finder  of,  hud  no  felonious  intent  at  the  time,  a  mdwe^ 

quent  converHion  will  not  tonHtituto  larceny j,  419 

Note  on  when  appropriation  of,  by  finder  constitutes  larceny, .',[',  |.*  418 

MALICE. 

Necessary  to  constitute  murder  a  question  of  fact v.  400,  vi.  610 

Implied  from  acts  in  abortion  yj,    iq 

Need  not  be  charged  in  an  indictment  for  arson  vi.    88 

MALICIOUS  TRESPASS. 

In  prosecution  for,  upon  real  estate  title  must  be  proved  to  be  in 

person  named  in  indictment y   373 

In  prosecution  foi,  upon  real  estate  question  of  title  can  not  be 

*"«'• V.  373 

Indictment  for,  u|x)n  personal  property vi.  416 

In  prosecution  for,  upon  personal  property  value  of  property  in- 
jured need  not  be  stated vi.  416 

MANSLAUGHTER. 

It  is,  where  one  resisting  arrest  kills  an  officer,  not  knowing  his 
ofiicial  character i v,    86 

One  present  encouraging  the  perpetration  of  an  act  by  another 

which  causes  the  death  of  a  third  person  is  guilty  of, iv.  403 

The  mere  fact  that  one  person  committed  a  civil  wrong  against 

another  can  not  be  used  as  an  incident  which  is  a  necessary  step  in  a 
prosecution  for, v.  877 

A  negligent  or  wanton  act  causing  an  unintentional  death  does 

not  constitute v.  377 

Where  one  through  negligence,  without  malice,  causes  death  of 

child  it  is v.  881 

Uusband  killing  a  man  taken  in  the  act  of  adultery  with  the  wife 

not  guilty  of,  (Texas);  "  Taken  in  the  act  of  adultery,"  construed. v.  385 

Reasonableness   of  appearances   will   justify  an    act  otherwise 

criminal v.  385 

Physician  who  attends  a  sick  woman  and  prescribes,  with  gross 

recklessness,  a  course  of  treatment  which  causes  her  death  is  guilty 
of, v.  391 

Indictment  need  not  allege  physician  knew  of  the  dangerous  ten- 
dency of  remedy  prescribed v.  391 

Absence  of  juror  during  adjournment  of  trial  in  custody  of  a 

sworn  officer,  is  not  such  separation  of  the  jury  as  vitiates  a  ver- 
dict of,  V.  879 

On  trial  for,  instruction  in  language  of  statute  proper v.  406 

When  the  killing  of  an  officer  attempting  an  unlawful  arrest  is.vi,  418 

SeeATofe vi.  430 

Note  on  justification  for  killing  officer vi.  430 

When  instruction  that  the  evidence  did  not  justify  conviction  for, 

in  either  third  or  fourth  degree,  not  error vi.  418 

And  murder  distinguished. vi.  481,  viii.  496 


710 


INDEX  TO  VOLS.  I  TO  X. 


MANSLAUGHTER— Con«nited.  page. 
It  is  not  presumed  that  a  person  intends  all  the  possible  conse- 
quences of  his  act vi.  431 

Note  on  distinction  between  the  attempt  to  commit  a  misdemeanor 

and  an  act  that  would  if  committed  amount  to  a  felony vi.  435 

Where  one  culpably  negligent,  accidentally  kills  another  he  is 

guilty  of .^ vi.  511 

Refusing  instructions  defining,  is  not  error  where  it  is  clear  such 

crime  is  not  involved vii.  640 

When  information  contains  three  counts  charging  criminal  abor- 
tion, and  an  additional  count  charging,  upon  a  day  subsequent,  two 
distinct  offenses  are  charged  and  prosecutor  should  be  required  to 

elect vii.  345 

"  Adequate  cause,"  to  reduce  murder  to vii.  463 

True  test  as  to  murder  in  the  second  degree  and, viii.  4U6 

In  judging  of  degree  of  danger  the  circumstances  must  be  consid- 
ered from  the  standpoint  of  defendant .....  viii.  496 

Testimony  of  bystander viii.  496 

Criminal  liability  of  person  who  causes  death  of  another  by  negli- 
gently driving viii.  507 

Note  on  what  constitutes '. viii.  501 

What  constitutes  criminal  negligence viii.  507 

— —  Unlawfulness  of   act  does  not  make  doer  criminally  liable  for 

unforeseen  consequences viii.  514 

Sufficiency  of  indictment  for,  cJf  railroad  engineor  for  running  his 

engine  into  passenger  car,  causing  the  death  of  a  certain  person,  .viii.  518 

Conviction  of  one  co-defendant  under  indictment  for,  no  evidence 

against  the  other ix.  365 

Where  one,  whose  duty  it  is  so  to  do,  neglects  to  provide  foo<l  or 

medical  attendance  for  a  helpless  person,  and  their  death  is  accel- 
erated by  such  neglect,  he  is  guilty  of, ix.  410 

In  the  fourth  degree  defined ix.  313 

Exclusion  of  conversation  between  deceased  and  one  of  those 

engaged  in  the  fight  not  error  when ix.  313 

When  a  man  assailed  kills  another  is  not  guilty  of, ix.  324 

Note  on  duty  to  retreat ix.  33V 

Where  two  pereons  engage  in  mutual  combat  and  one  is  killed 

it  is ix.  622 

MARRIAGE. 

Evidence  competent  to  prove,  in  adultery  case i.    34 

Competent  evidence  to  prove,  in  bigamy  case i.    74 

Solemnization  of  unlawful,  a  misdemeanor ii.    79 

In  prosecution  of  justice  for  joining  in,  a  girl  under  age,  the  fact 

he  was  a  neighbor  of  her  parents  may  be  shown  as  tending  to  show 

that  he  knew  her  ago ii.    79 

An  instruction  that  if  the  justice  "  had  good  reason  to  believe"  the 

girl  was  under  age  he  is  guilty,  erroneous ii.    79 

In  prosecution  for  unlawfully  joining  a  female  minor  in,  the  de- 
fendant can  not  show  her  size,  appearance   and  development  for 
purpose  of  proving  her  age ii.  634 


^'^^Fi'^tv, 


AMERICAN  CRIMINAL  REPORTS.  7^1 

MARRIAGE— Confintied.  ^^^^ 

Nor  is  it  any^  defense  that  defendant  honestly  believed  the  minor 

to  be  of  full  age ii.  634 

What  is  a  negro,  in  the  sense  of  the  statute  prohibiting,  between 

whites  and  negroes jj   ggg 

■ Note  on  u'hat  amount  of    negro  blood  constitutes  a  person  a 

negro ii  gg, 

Of  a  man  whose  wife  had  obtained  a  divorce  for  his  misconduct 

is  bigamy ii   gi2 

By  agreement  of  parties  to  be  good  must  be  followed  up  by  actual 

cohabitation  thereunder  as  husband  and  wife ii.    13 

. May  be  proven   by  testimony  of  persons  present  at  tiie,  including 

the  contracting  parties ix.  408 

Letter  written  by  husband  to  his  mother-in-law  is  competent  to 

prove  his, ix.  408 

Note  on  '.oliat  constitutes ix.  412 

MAYHEM. 

Special  intent   essential  to  crime  charged  must    be  pleaded, 

proved  and  found ii.  631 

Verdict  finding  the  malicious  intent,  with  sufficient  certainty  to 

restrain  judgment  for, ii.  631 

Intent  when  presuuied  in,  case vii.  369 

"  Intent"  defined vii.  369 

Note  on  wilfuUness  and  mnliceas  elements  of, vii.  373 

A  specific  intent  to  maim  not  necessary  to  conviction  of, viii.  533 

Evidence  sufficient  to  support  verdict  of  guilty viii.  533 

To  make  the  inflicting  of  the  wound,  it  must  be  done  maliciously 

and  wilfully viii.  543 

"  Feloniously  "  is  not  equivalent  to  "  wilfully  and  maliciously  "..viii.  543 

MEMORANDUM. 

It  is  error  to  refuse  to  compel  witness  to  produce,  referred  to  by 

him  in  his  testimony  as  showing  a  fact  involved  in  ths  case i.  187 

See  Note i.  187 

MISDEMEANOR. 

See  Felony  and  Misdemeanor v.  10,  631 

Cor^Kiration  indictable  for ix.  370 

Judgment  by  default  may  be  rendered  against  corporation  indicted 

for .' ix.  370 

A'ote  on  indictment  charging  a,  in  one  count  and  a  felony  in 

another x«  828 

MOTIVE. 

Ill-feeling  as  bearingupon,  (Arson) v.    43 

Evidence  of,  oi  complainant  in  bastardy  case  charging  defendant 

with  paternity ^-    ^8 

. Circumstantial  evidence  tending  to  show,  admissible  in  arson 

case ^||-  203 

Instruction  as  to,  in  murder  case vii.  877 

Testimony  tending  to  show,  in  rape  case vii.  577 


712 


INDEX  TO  VOLS.  I  TO  X. 


THOTiyE— Continued.  page. 

Policies  of  insurance  admissible  in  evidence  to  show,  in  prosecu- 
tion for  body  stealing viii.  100 

Evidence  admissibL>  to  show,  of  prosecuting  witness  in  larceny 

case ix.  536 

MUNICIPAL  CORPORATIONS. 

A  police  judge  has  exclusive  jurisdiction  over  all  offenses  against 
city  ordinances iv.  446 

Defendant  entitled  to  appeal  from  courts  of,  although  charter  does 

not  specifically  provide  for  appeals.   iv.  446 

Ordinances  of,  must  be  subordinate  to  and  harmonize  with  the 

general  law  of  the  state iv.  458 

Ordinance  of,  in  conflict  with  the  general  law  of  the  state  is 

void iv,  458 

May  enact  ordinances  regulating  sale  of  intoxicating  liquors. .  .iv.  300 

May  pass  ordinances  for  punishment  of  same  acts  as  are  punisha- 
ble under  the  Penal  Code  of  the  state ix.  733 

MURDER. 

What  constitutes  intent iv.  351 

Persons  causing  man  to  jump  from  running  car  and  he  is  thereby 

killed,  are  guilty  of iv.  351 

Malice  when  inferred iv.  351 

By  poisoning  is,  in  the  first  degree iv.  357 

Onus  on  prosecution  to  show,  in  first  degree iv.  309 

To  sustain  verdict  of,  what  record  nmst  show iv.  309 

Where  statute  provides  that  wilful,  premeditated  and  deliberate 

killing  is,  in  the  first  degree  intoxication  of    defendant  may  be 

shown iv.  365 

Insanity  produced  by  intoxication  may  be  shown  as  a  defense  in, 

case iv.  395 

In,  case  whether  defendant  was  under  influence  of  fixed  or  tem- 
porary insanity  question  for  jury iv.  395 

Voluntary  intoxication  will  not  reduce,  to  manslaughter iv.  395 

Evidence  of  defendant's  previous  habits  of  intoxication  admissi- 
ble in,  case iv.  895 

Insanity  as  a  defense  in,  case  must  be  established  by  a  preponder- 
ance of  evidence iv.  386 

Infants  exempted  from  imprisonment  in  penitentiary  for,  not  ex- 
empted from  death  penalty iv.  393 

Onus  on  state  to  show  infant  capable  of  committing, iv.  393 

One  encouraging  commission  of  unlawful  act  resulting  in  death 

of  another  guilty  of, iv.  403 

On  trial  of  principal  and  accessory  jointly  for,  evidence  finding 

guilt  of  former  not  admissible  against  latter iv.  410 

Degree  of,  to  be  found  by  jury iv.  417 

In,  case  when  jury  is  polled  c?ch  juror  must  answer  for  himself 

as  to  degree  he  finds  defendant  guilty  of iv.  415 

"  Malice  aforethought,"  tantamount  in  indictment  for,  to  wilful 

deliberate  and  premeditated iv.  375 


^^^w 


PAGE. 


386 


AMERICAN  CRIMINAL  REPORTS.  713 

MURDER— Conhnued.  p^^g 

Where  cruelty  and  neglect  result  in  death  of  child,  defendant  is 

guilty  of,  if  acts  were  willfully  done v.  381 

Death  from  commission  of  unlawful  act  although  killing  itself  was 

not  intended,  is y_  ggj 

Declarations  of  accused  made  during  continuance  of  cruel  treat- 
ment not  admissible  on  trial  for y.  381 

Absence  of  juror  although  in  custody  of  sworn  officer  for  two  days 

during  adjournment  of  trial  vitiates  verdict  where  defendant  is  found 

guilty  of , V .  379 

Pursuer  killing  felon  who  resists  or  flees  from  arrest  is  not  guilty 

of V.  438 

In  conspiracy  to  commit,  all  conspirators  jointly  liable v.  438 

Reciuisites  of  indictment  for  committing,  with  a  club v.  400 

Cooling  time  which  reduces,  to  manslaughter. v.  459 

Instruction  as  to  "  cooling  time  " v.  459 

Declarations  of  defendant  while  killing  deceased  admissible  as 

part  of  the  rea  gestae v.  465 

Exclusion  of  testimony  in  trial  as  to  defendant's  declaration  at 

time  of  shooting  deceased  error v.  4G5 

Indictment  for,  with  a  club  need  not  allege  accused  held  club  ,.v.  469 

Indictment  for,  need  not  charge  assault  and  battery v.  469 

Sufficiency  of  indictment  for v.  477 

Evidence  showing  an  accused  an  accomplice  in,  will  not  sustain 

his  conviction  as  principal v.  477 

Conviction  of  one  charged  with,  as  principal  in  second  degree  not 

warranted  where  there  is  no  evidence  of  guilt  of  the  principal  in  the 

first  degree v.  552 

Instruction  in,  case  as  to  evidence  re«iuired  to  rebut  presumption 

of  malice v.  485 

Killing  two  jwrsons  by  same  act  constitutes  two  separate  crimes,  v.  486 

Defendant  may  be  tried  for,  while  serving  life  sentence v.  486 

In  prosecution  for,  surrounding  circumstances  may  always  be 

shown  as  part  of  tlie  res  gestfe v.  486 

In  cases  of  circumstantial  evidence   it  is  necessary  that  all  the 

facts  and  circumstances  essentia  I  to  conviction  of,  be  proved  beyond 

a  reasonable  doubt v.  499 

Brutal  conduct  of   accused  and  physical  condition  of  deceased    - 

may  be  shown v.  512 

By  arsenic v.  517 

Proof  that  deceased  was  a  human  being  unnecessary  but  harm- 
less  ^-  6" 

Where  accused  voluntarily  testified  at  coroner's  Inijuest  statement 

of  his  testimony  attested  by  his  signature  may  be  read  in  evidence 

against  him  on  trial v.  517 

Physical  condition  of  accused  at  time  of  commission  of,  may  be 

Bhown ^-533 

In  a  trial  for.  tli-  killing  is  a  fact  to  be  found  by  the  jury v.  532 

Pendency  of  indictment,  at  time  of  preliniinary  examination  will 

not  sustain  plea  ot  abatement  when  arraigned  on  information  after 
indictment  was  nolled ^-538 


7U 


INDEX  TO  VOLS.  I  TO  X. 


MURDER— Conh'nwed.  page. 

A  man  who  kills  another  for  the  purpose  of  eating  his  flesh, 

although  believing  that  such  act  is  the  only  chance  to  save  his  own 

life  is  guilty  of v.  559 

Each  rioter  liable  for  every,  committed  while  he  aided  and  par- 
ticipated in  the  riot v.  622 

Unlawful  combination  to  commit, vi.  436 

And  manslaughter  distinguished vi.  481 

The  Anarchist,  case vi.  570 

Overcoming  legal  presumption  of  sanity vi.  461 

To  establish  insanity  as  a  defense  in  a,  case  it  must  appear  that  at 

the  time  of  committing  acta  charged  accused  was  insane  to  such  a 

degree  as  to  create  an  uncontrollable  impulse vi.  461 

Single  instruction  in,  prosecution  need  not  embody  whole  law  of 

the  case vi.  461 

Form  of  verdict  for  lesser  offense vi.  461 

A  killing   under  sudden  impulse  of  passion  reduces,   to  man- 
slaughter   vi.  461 

Effect  of  verdict  of  guilty  of  lower  degree  of,  on  second  trial. .  .vi.  487 

Threats  of  accused  against  deceased  as  evidence vi.  508 

Evidence  as  to  general  character  of  accused  for  peace  and  quiet- 
ness admissible vi,  508 

Evidence  as  to  character  of  deceased  for  peace  and  quietness  inad- 
missible  vi.  508 

Mutual  combat  no  excuse  or  justification  for, vi.  619 

Sufficiency  of  facts  to  prove  existence  of  malice  is  a  matter  for  the 

jury vi.  519 

A  killing  is,  where  defendant  having  opportunity  to  decline  further 

combat  fails  to  do  so vi.  519 

See  Note vi.  524 

A  pereon  assailed  having  opportunity  to  avoid  the  threatened  injury 

does  not  and  kills  his  assailant  he  is  guilty  of vi.  538 

— —  What  constitutes  deliberation  and  premeditation vi.  534 

See  Note vi.  .537 

Withdrawal  of  plea  of  guilty  after  judgment vi.  542 

Waiver  of  trial  by  jury  by  plea  of  guilty vi.  542 

On  a  trial  upon  a  charge  of,  when  not  error  to  refuse  instructions 

defining  manslaughter vii.    61 

One  who  in  malice  inflicts  a  wound,  not  in  its  nature  fatal,  but 

which  being  neglected  causes  death,  is  guilty  of, vii.  872 

See  Note vii.  374 

Where  circumstances  suggest  that  deceased  committed  suicide, 

evidence  of  his  manner  and  conduct  the  evening  before  his  death 

competent  to  repel  suicide  theory vii.  377 

Ordinary  witnesses  may  testify  as  to  facts  made  up  by  a  combina- 
tion of  appearances vii.  377 

Demeanor  of  one  charged  with,  at  or  about  the  time  of  its  com- 
mission may  be  shown vii.  377 

In  trial  for,  to  permit  co-defendant  to  testify  for  state  whtii  error. 

vii.  407 
In,  trial  testimony  of  accomplice  must  be  corroborated vii.  074 


AMERICAN  CRIMINAL  REPORTS.  715 

MURDER— Confinued. 

PAQE 

When  two  crimes  are  committed  both  may  !  e  proved vii   432 

A  pickpocket  killing  a  citizen  pursuing  him  is  guiltv  of,.  .*,'.'.  .vii.  433 

A  citizen  may  without  a  warrant  arrest  one  guilty  of  a  felony,  vii.  423 

Charge  of  court  in,  trial  must  clearly  define  degrees  of, '.  vii.  428 

In,  trial  presumption  prevails  in  favor  of  innocence  and  of  lesser 

offense ..    ,qg 

In,  trial  instruction  that  defendant  intended  result  of  his  actions 

proper ^j.   ^g^ 

Note  on  intent  in,  cases ^jj   4^^ 

Drunkenness  of  defendant  in,  trial  not  legitimate  matter  of  in- 

q"*''^ vii.  439 

Where  m  the  carrying  out  of  a  conspiracy  to  assault  one  of  the 

conspirators  kills  the  party  assaulted  all  are  guilty  of vii.  443 

Indictment  for,  failing  to  allege  killing  was  felonious    fatally 

defective yji   452 

Evidence  of  previous  intention  to  figlit  admissible  in,  trial vii.  463 

Note  on  evidence  of  hostility  of  parties,  character  and  declaration 

of  deceased yJj_  457 

Motive  of  defendant  in,  trial  proper  subject  of  instructions. .  .viii.  545 

In,  trial  jury  should  be  instructed  as  to  distinction  between  express 

and  implied  malice viii.  545 

In,  trial  charge  to  jury  should  contain  instruction  as  to  right  of 

self-defense viii.  545 

Indictment  not  alleging  intent  to  take  life  charges,  in  the  second 

degree viii.  566 

Passion  aroused  by  words  as  affecting  degree  of, ix.  320 

Indictment  for,  in  first  degree  includes  all  degrees  of  homicide. ix.  320 

Proper  to  refuse  in,  trial  to  charge  that  defendant  did  not  have 

time  to  cool  after  his  passion  was  aroused ix.  320 

Passion  without  cause  not  taken  into  account ix.  320 

Verdict  of,  in  first  degree  not  disturbed  by  appellate  court  when.  ix.  377 

Expre.'^sions  of  malice  followed  by  friendly  relations  as  evidence 

of  motive  in,  trial ix.  377 

Identification  of  money  found  on  defendant  as  being  such  as  had 

been  paid  to  deceased ix.  377 

Evidence  of  defendant's  financial  embarassment  prior  to,  admis- 
sible  ix.  377 

In,  trial  proper  to  refuse  charge  distinguishing  between  belief  as 

juroi-s  and  belief  as  men ix.  877 

Whether  evidence  in,  trial  of  the  corpus  delicti  \b  prima  facie  suf- 

fioient  to  permit  defendant's  confession  to  go  to  jury  question  for  the 

court i^'  383 

Sufficiency  of  evidence  of  corpus  delicti  to  establish  fact  for  which 

admitted  question  for  jury ix.  383 

Where  the  blow  was  struck  in  one  state  and  death  ensued  in 

another  the  indictment  for,  should  be  laid  in  the  former ix.  398 

^eeNote «•  406 

When  before  verdict  a  separation  of  jurors  no  ground  for  dis- 
charge of  jury ix.  898 


a| 


716 


INDEX  TO  VOLS.  I  TO  X. 


TUVnni^R— Continued.  page. 

On  trial  for,  proper  to  refuse  to  charge  duress  of  third  person  as  a 

defense ix.  517 

Where  intoxicated  person  has  capacity  to  form  intent  his  intox- 
ication is  no  ground  for  reducing  the  crime  to,  in  second  degree,  .ix.  526 

Where  a  trespass  on  person  or  property  of  anotlier  amounts  only 

to  a  misdemeanor  the  if  illing  of  the  trespasser  is ix.  .'587 

A^ote  on  jurisdiction  where  a  person  standing  in  one  state  felo- 
niously kills  a  person  in  another  state ix.  406 

In,  trial  not  competent  for  party  wounded  to  state  who  inflicted 

it  unless  part  of  the  res  gestae ix.  383 

Admissibility  of  exclamations   uttered    contemporaneous    witli 

act ix.  383 

To  set  aside  verdict  in,  trial  for  separation  of  jury  same  must  have 

been  irregular  or  prejudicial ix.  626 

Insanity  as  a  defense ix.  026,  x.  329 

See  Note x.  336 

Irresistible  impulse  discussed ix.  026 

Note  on  proof  of  blood  stains  in.  trial ix.  388 

Note  on  intentional  killing  not  necessarili/  proving  malice ix.  383 

Killing  "  deputy  "  wlio  does  not  make  known  his  authority  wlicii 

asked  is  not, ix.  570 

"  Would  you  convict  on  circumstantial  evidence?"  improper  ques- 
tion to  ask  veniremen  in,  trial ix.  383 

Confession  of  one  of  two  persons  on  joint  trial  for,  made  not  in  the 

presence  of  tlie  other  is  incompetent  as  evidence  against  the  latter.. x.  168 

Note  on  when  confession  of  defendant  in,  trial  is  sufficient  to  sus- 
tain conviction x.  227 

— —  Note  on  admission  in,  trial  of  defendant's  deposition  taken  on  his 
preliminary  examination x.  296 

Note  on  sufficiency  of  description  of  the  act  in  indictment  for, .  .x.  328 

Note  on  iiulicttuent  for  murder  not  including  assault  and  battery 

X.  829 

Person  indicted  for,  as  a  witness  in  liis  own  behalf x.  433 

Affidavits  of  accused  for  a  continuance  in,  trial  taken  as  true. .  .x.  456 

Credibility  of  witness  or  weight  of  testimony  as  affecting  correct- 
ness of  verdict  not  reviewable  on  appeal x.  499 

Verdict  of  conviction  not  disturbed  on  appeal  unless  clearly  evi- 
dent that  it  was  rendered  under  influence  of  passion  or  prejudice,  .x.  499 

Proof  of  motive  not  indispensable  to  conviction x.  499 

Photogi'aph  of  person  murdered  admissible  in  evidence x.  499 

Where  the  evidence  is  purely  circumstantial  it  is  proper  for  the. 

prosecution  to  show  that  another  person,  who  was  in  the  vicinity  at 
the  time  of  the  killing  could  not  have  committed  the, x.  547 

In  trial  for,  the  law  prt^uming  sanity,  the  burden  is  on  accused 

urging  his  insanity  as  a  defense  to  prove  it x.  583 

In  a  prosecution  for,  the  proof  must  satisfy  the  jury,  in  order  to 

warrant  verdict  of  acquittal  that  the  accased  was  not  of  sane  rnind 
at  the  time  of  the  act  charged x.  585 

Objections  and  exceptions  to  prove  a  confession  when  sufficient  x.  547 

Determining  in,  trial,  whether  projier  foundation  was  laid  for  ad- 
mission of  confession x.  547 


AMERICAN  CRIMINAL  REPORTS.  717 

MURDER— Con/fnwed. 

Page 

Fifth  amendment  to  the  Constitution  controls,  in  the  fofleral  courts 

the  question  as  to  competency  of  a  con  f ession  when  involuntary       x '  547 

Rule  governing  admissibility  of  confession x*  547 

Confession  made  to  a  police  officer  not  necessarily  involuntary    x   547 

Grand  jury  affirming  instead  of  taking  oath [  ^   547 

Amending  record  of  selection  of  jury  list x.  499 

That  some  persons  selected  as  jurors  do  not  possess  necessary  qual- 
ifications is  not  ground  for  challenge  to  panel x.  499 

In  trial  for,  judge  may  curtail  cross-examination  on  a!  coilateial 

matter ^   ^^^ 

Note  on  presumption  of  sanity  and  burden  of  proof x.  60I 

Plea  of  insanity  as  an  affirmative  defense x.  603 

— —Disease  affecting  the  reason  docs  not  relieve  accused  of  respoiisibil- 

*'^ X.  604 

Drunkenness  as  a  defense  to  prosecution  for x.  604 

Delirium  tremens  as  a  defense  in  trial  for, x.  604 

Plea  of  insanity  does  not  cast  burden  of  proof  upon  defendant,  .x.  604 

Sanity  of  accused  must  be  established  by  prosecution,  beyond 

reasonable  doubt x.  60.* 

Setting  up  defense  of  insanity  by  special  plea x.  605 

Introduction  of  evidence  tending  to  shake  presumption  of  sanity 

renders  it  necessary  to  warrant  conviction  for  prosecution  to  prove 

sanity  of  ax:eused  at  time  of  committing  the  crime  charged x.  605 

Soundness  of  mind  an  essential  element  of  a  criminal  offense, .  x.  605 

— —  Change  of  venue x.  606 

Where  change  of  venue  is  applied  for  on  account  of  the  prejudice 

of  the  judge,  the  court  may  request  judge  of  adjoining  county  to  hold 

the  court  in  which  case  is  pending x.  606 

— —  Requisites  of  such  application x.  606 

Statute  providing  for  an  inquisition  where  there  is  a  probability 

that  the  accused  is,  at  the  time  of  his  trial,  insane,  to  determine 

'whether  he  so  is  insane,  is  in  aid  of  the  Bill  of  Rights x.  606 

Where  jury  appointed  under  such  statute  disagrees  as  to  accused's 

insanity,  and  trial  is  had  on  the  issue  of  not  guilty  involving  deter- 
mination also  of  the  question  of  insanity,  defendant  can  not  have  a 

second  trial  on  the  special  issue  of  this  insanity x.  606 

^—  In  a  prosecution  for,  evidence  of  defendant's  acts,  conduct  and 
declarations  subsequent  to  the  fourth  day  after  the  homicide  are 

admissible x.  606 

Delirium  tremens  caused  by  drunkenness,  as  an  excuse  for  crime.x.  600 

——Note,  to  what  extent  drunkenness  may  excuse  or  palliate  a  cnme.x,  Q22 
Note  on  insanity  produced  by  the  use  of  morphine,  cocaine  and  in- 
toxicants  X.  623 

The  issuance  of  process  for  contempt  charged  to  have  been  com- 
mitted by  the  publishers  of  newspapers  during  the  progress  of  a  trial 

for,  rests  entirely  in  the  sound  discretion  of  the  court x.  499 

Where  defendant,  for  delay  only,  objects  to  submitting  a  case  for 

hearing  before  the  time  for  filing  briefs  has  expired,  the  objection  is 
without  merit ^'  ^36 


718 


INDEX  TO  VOLS.  I  TO  X. 


MURDER— CoMfinwcd.  paoe. 

Where  defendant  had  two  attorneys,  and  they  were  notifled  of  a 

hearing  to  be  had,  and  one  of  them  was  absent,  it  was  not  error  to 
refuse  a  continuance  of  the  hearing x.  686 

, Where  a  judgment  of  death  has  not  been  executed  when  directed 

to  be,  and  defendant  has  been  called  into  court  to  show  cause  why 
another  date  for  execution  should  not  be  fixed,  it  is  not  error  for  the 
court  to  refuse  to  inquire  into  the  validity  of  the  judgment  by  which 
defendant  was  convicted x,  686 

It  is  not  error,  in  fixing  punisliment  for  murder,  to  direct,  as  a 

part  of  the  judgment,  that  defcnd.int  be  kept  in  close  confinement  in 
the  penitentiary  until  the  day  set  for  the  execution x.  686 

When  a  trial  court  refuses  a  certificate  of  probable  cause,  the 

proper  remedy  is  to  renew  the  application  therefor  before  one  or  more 
of  the  justices  of  the  supreme  court x.  536 

—  An  order  fixing  the  date  of  execution  is  an  order  made  ofter  final 
judgment,  affecting  the  substantial  rights  of  defendant,  and  is  appeal- 
able   X.  586 

An  appeal  from  an  order  fixing  the  time  for  execution  does  not 

stay  the  execution  without  a  certificate  of  probable  cause,  and  de- 
fendant may  be  executed  pending  the  appeal  where  such  certificate 
is  not  secured x.  536 

In  making  an  application  for  a  certificate  of  probable  cause  to  the 

supreme  court,  it  is  ordinarily  essential  that  there  should  be  a  settled 
bill  of  exceptions  presented  to  the  court  before  the  certificate  will  be 
granted x.  536 

It  is  error  to  order  execution  of  defendant  at  a  date  within  the 

time  allowed  by  statute  for  an  appeal  from  the  order,  and  the  time 
allowed  for  preparing  and  settling  a  bill  of  exceptions,  preparatory  to 
an  application  to  the  supreme  court  for  a  certificate  of  probable  cause, 
in  case  such  certificate  should  be  refused  by  the  trial  court x.  536 

Where  an  order  is  made  fixing  the  time  of  execution  of  defendant 

at  a  date  which  renders  the  preparation  and  presentation  of  a  bill  of 
exceptions  to  the  supreme  court,  in  an  application  for  a  certificate  of 
probable  cause,  impossible,  the  order  is  void  on  its  face,  and  justifies 

the  issuance  of  a  certificate  without  a  bill  of  exceptions z.  636 

See  Confessions. 

MUTUAL  COMBAT. 

No  justification  or  excuse  of, vi.  519 

In,  both  parties  are  aggressors i.  59,  ix.  628 

Proper  charge  where  defendant  and  deceased  were  engaged  in,  at 

the  time  of  the  killing ix.  623 

Note  on,  as  affecting  the  right  of  self-defenne x.  478 

NAMES. 

Note  on  middle  name  or  initial  an  essential  of  the  name vii,  244 

NATIONAL  BANKS. 

State  court  has  jurisdiction  of  an  indictment  against  officers  of, 

for  receiving  deposits  when  bank  is  insolvent x.    71 

Officers  of,  knowing  their  bank  to  be  insolvent  are  guilty  in  respect 

to  a  deposit  received  by  the  teller,  even  though  the  latter  had  not 
been  specifically  authorized  to  receive. the  particular  deposit x    75 


^^-*v 


AMERICAN  CRIMINAL  REPORTS.  719 

NEGLECT  TO  SUPPORT.  p^oK. 

See  Disorderly  Act. 
NEWSPAPER. 

Proprietor  of,  may  be  punished  for  contempt  for  an  article  pub- 
lished in  the,  owned  by  him j_  ]07 

See  Note ' ' '    x   489 

Managing  editor  of,  etjually  liable ....".*.".  ..i!  107 

Note  on  inmiahmeiit  of,  praprietors  and  editors  for  contempt  ...i.  141 

NEW  TRIAL. 

Affidavit  of   co-defendant   ia  not   suiflcient  on  a  motion  for, 
■"^hen.. i     gg 

Motion  for,  on  ground  of  newly  discovered  evidence  should  not  be 

overruled  where  no  negligence  appears  on  part  of  prisoner  or  his 
counsel j   hq 

Surprise  as  a  ground  for, i.  855 

Failure  of  defendant  to  move  for,  in  court  below  does  not  bar,  on 

reversal i.  178 

Where  defendant  is  convicted  upon  evidence  purely  circumstan- 
tial and  slight  in  its  nature,  he  is  entitl  -d  to, ii.    56 

Motion  for,  overruled  by  a  judge  other  than  the  trial  judge ii.    56 

Note  on  abiiolute  right  to,  where  trial  judge  dies  or  is  removed,  .ii.    58 

Note  on  what  disqualification  of  juror  entitles  defendant  to, ii.  263 

Right  of  defendant  to  move  for,  for  errors  of  court  or  for  insuffi- 
ciency of  evidence iii.  863 

Error  to  refuse  to  hear  motion  for,  unless  trial  judge  thinks  evi- 
dence overwhelming  against  defendant iii.  363 

Right  of  defendant  to  have  a  motion  for,  heard  by  trial  judge,  .iii.  362 

Refusal  to  hear  motion  for,  error  for  which,  should  be  granted. iii.  362 

Defendant  making  motion  for.  before  another  judge  after  trial 

judge  had  refused  to  liear  it  not  a  waiver  of  the  error  of  the  latter. iii.  362 

Grantin'    when  witness  discovers  that  he  was  honestly  mistaken 

in  his  testimony  as  to  material  facts iv.  434 

Should  not  be  granted  where  main  fact  is  clearly  established  by 

the  evidence  and  a  subordinate  fact  is  found  by  jury  to  be  against 
defendant iv.    52 

One  not  a  juror  entering  the  jury  room,  no  gi'ound  for,  unless 

jury  waa  in  the  room  at  the  time iv.  127 

On  motion  for,  whether  verdict  is  contrary  to  law  is  a  question  for 

the  court .  iv.  211 

When  verdict  is  against  the  law,  should  be  granted iv.  211 

Great  caution  should  be  exercised  by  court  in  granting,  solely  on 

the  ground  that  verdict  is  contrary  to  the  evidence iv.  369 

Disqualification  of  juror  unknown  to  defendant  until  after  verdict 

good  ground  for, iv.  627 

Indorsement,  without  leave  of  court  of  names  of  additional  wit- 
nesses upon  information,  after  going  to  trial  ground  for, iv.  476 

Unfair  and  intemperate  discussion  of  the  evidence  by  counsel 

ground  for iv.  338 

Prosecutor  commenting  on  defendant's  failure  to  testify  entitles 

him  to iv.  516,  529 


720 


INDEX  TO  VOLS.  I  TO  X. 


NEW  TRIAL—Oon^'jined.  page. 

Refu>^ing,  within  the  dianretion  of  the  court W.  43,  v.  533 

Faihire  of  court  to  ask  prisoner  if  lio  has  anylliinf:;  to  suy  wliy 

judgment  should  not  be  pronounced  on  him  not  ground  for Iv.  560 

— —  Trial  court  entertaining  supplemental  motion  for,  at  tiie  term  the 
final  judgment  is  pronounced v.  469 

Statements  made  after  verdict  by  witness  nullifying  his  testimony 

on  which  defendant  was  convicted  entitles  him  to, v.  469 

Distinguishing  between  impeaching  and  cumulative  evidence.,  .v.  469 

Ability  to  prove  false  swearing  not  ground   fur,  unless  diligence 

shown vi.    83 

On  hearing  motion  for,  affidavits  of  jurors  not  admissible  to  im- 
peach their  verdict vi,    88 

—  That  the  jury  was  not  able  to  hear  instructions  when  rend  owing 

to  great  noise  in  court  room  at  the  time  no  ground  for, vi.  899 

When  insanity  of  juror  no  ground  for, vi.  556 

That  juror  was  not  a  qualified  elector  as  ground  for vi.  849 

To  entitle  defendant  to  a,  on  account  of  dis(|ualificntion  of  juror 

it  must  affirmatively  appear  that  such  disqualification  was  unknown 

to  juror  until  after  jury  was  impaneled vi.  349 

See  Note vi.  852 

Note  on  the  right  under  the  law  to, vi,  505 

— —  Motion  for.  must  appear  in  bill  of  exceptions vii.  529 

See  Note vii.  633 

—  Prosecutor  assuming  in  argument  that  there  was  evidence  which 
there  was  not  ground  for, viL  845 

— —  Preconceived  opinion  of  juror  discovered  after  verdict  not  ground 
for,  unless  it  would  have  excluded  him  from  jury  had  it  been  known 
before  he  was  sworn ix.  626 

— -  Defendant  entitled  to,  where  verdict  not  sustained  by  the  evi- 
dence  ix.  746 

NOLLE  PROSEQUI. 

Power  to  enter,  belongs  to  prosecutor  and  not  to  the  court i.  548 

NUISANCE. 

In  prosecution  for,  necessary  to  prove  matter  of  description  when. 

iv.  444 

—  In  prosecution  for  keeping  disorderly  house  unnecessary  to  prove 
character  of  people  frequenting  it iv.  444 

Keeping  of  a  hog-pen  may  be  a, iv.  446 

— —  Lessee  and  owner  of  premises  on  which  lessor  maintains  a,  may 

be  enjoined  from  maintaining  same vi.  148 

Though  the  act  was  lawful  at  date  of  lease,  owner  is  not  thereby 

relieved  from  the  statute  subse«iuently  enacted  making  such  act  a, .  vi.  148 
A  license  from  a  Board  of  Health  is  no  defense  to  an  indictment 

for  creating  a  public, vii.  469 

— -  Legislature  has  power  to  legalize  so  far  as  the  public  is  concerned, 

that  which  otherwise  would  be  a  public, vii.  469 

Singing  a  ribald  song  on  public  streets  is  a, viii.  608 

What  are  proper  matters  of  evidence  where  defendants  are  charged 


^=r 


88 


.i.  643 

rhen. 

iv.  444 
)rove 
.iv.  444 
.iv.  446 
may 
.vi.  148 
reby 
,,.vi.  148 
ment 
.vii.  469 
med, 
vii.  469 
.viii.  608 
irged 


AMERICAN  CRIMINAL  BEPORTa  f^ 

NUISANCE-Confmucd.  pj^gj., 

with  maintaining  a  public,  in  the  operation  of  an  oil  refinery  remit- 
ting iio^ious  vapors yjij   gig 

Proper  instructions  in  such  a  case viii.  619 

Private  person  can  not  abate  a  strictly  private ix.    78 

Profane  swearing  a  public, ix.  413 

It  is  the  publicity  of  the  offense  that  makes  it  punishable  as  a  com- 

«non<-; ix.  412 

An  indictment  charging  prof ane  swearing  as  a  public,  must  charge 

that  it  was  ui,ter<Hi  in  the  presence  of  and  heard  by  citizens ix.  412 

Note  on  ujhat  conalitutea  a, ix.  416 

OATH. 

Should  be  administertd  to  a  person  about  to  be  sworn  in  the 
•    mode  mcst  binding  on  his  conscience vii.  407 

OBSCENITY. 

Sufficiency  of  indictment  for,  charging  indecent  exhibition. .  .iii.  486 

Requisites  of  indictment  for  publishing  an  obscene  book  iii.  390, 

464,  470,    V.  571,  x.  251 
In  prosecution  for.  where  indictment  charges  defendant  with  pub- 
lishing a  book  containing  pictures  and  descriptions  of  naked  girls 
and  the  evidence  shows  that  the  pictures  were  of  girls  clothed  below 

the  waist,  variance  is  fatal iii.  290 

On  trial  of  an  indictment  under  statute  against  publication  and 

distribution  of  obscene  or  ind  .  .nt  books,  the  question  of,  docs  not  re- 
quire the  testimony  of  an  expert  in  literature  or  art iv.  453 

Depositing  obscene  letter  in  mails  not  an  offense viii.  649 

A  "  writing"  defined viii.  649 

Requisites  of  question  to  be  made  the  subject  of  a  certificate  of 

division  . .  .* viii.  649 

OFFICER. 

Presumption  that  policeman  possesses  the  ordinary  powers  of  a 

peace, i»    80 

Right  of  peace,  to  arrest  one  committing  a  breach  of  the  i)eace  in 

his  presence iv.    36 

Requisites  of  indictment  charging,  with  corruption  in  office — iv.  143 

State  courts  have  jurisdiction  of  offense  committed  by  federal, 

at  polling  place Iv.  157 

When  killing  of  an,  is  manslaughter iv.    88 

In  indictment  for  resisting  an,  not  necessary  to  aver  how  he  acted 

iv.  559 

Requisites  of  indictment  for  killing  an iv.  559 

Requisites  of  indictm;nt  against,  for  receiving  excessive  fees.  .ix.  29."» 

Note  on  what  is  extortion  in, ix.  297 

A  person  acting  as  an,  under  an  unoonititutional  statute  can  not 

be  guilty  of  extortion ^^-  297 

Rescue  of  property  from, **•  503 

Status   of    persons    orally  deputized  by,  to   a.'^ist  in    making 

arrest *»•«<> 

46 


722  INDEX  TO  VOLS.  I.  TO  X. 

ORDINANCE.  faqe. 

Town,  must  be  dubordinate  to  and  harmonize  with  the  general 

State  law iv.  458 

iX)urts  will  not  take  cognizance  of,  of  incorporated  towns iv.  470 

— —  Municipal  corporation  hoa  no  power  to  potia  an,  declaring  all  pub- 
lic pionics  and  open  air   dnncoa  nuisanui'H v.  573 

Fixing  time  of    holding  council   niectinga   when  not  stated    in 

charter v.  681 

Purt  of,  restricting  sale  of  liquor  to  districts  designated  by  mayor, 

unconstitutional v.  581 

Amendment  of, v.  581 

Justice  entitling  case  in  name  of  city vi.  544 

Requisites  of  complaint  for  violating  city, vi.  544 

Of  city  for  regulating  keeping  of  dogs  and  enforcing  such  re;<ula- 

tions vi.   544,  vii.  479 

Proof  of  publication  of vi.  544 

"  Restrain"  as  used  in,  defined vi.  548 

See  Note vi.  551 

^—  The  subject  of  every,  must  bo  expressed  in  its  title,  and  no,  should 

embrace  more  than  one  subject vi.  418 

Clause  of,  imposing  costs  of  prosecution  void vi.  418 

Not  invalid  by  reason  of  its  leaving  amount  of  fine  or  period  of 

imprisonment  to  discretion  of  court vi.  418 

— —  •*  Noise"  as  used  in  an,  construed vi.  418 

Omitting  from  an,  the  words,  "  the  common  council  of do 

ordain  "  does  not  render  it  void vi.    81 

—  Validity  of,  requiring  male  citizens  to  perform  two  days'  work  on 

the  streets vii.  470 

In  prosecution  for  violation  of  city,  defendant  not  entitled  to  trial 

by  jury .' vii.  479 

See  Note,  contra x.  4U2 

— —  Note  on  power  of  municipal  corporation  by,  to  regulate  and  sup- 
press disorderly  houses vii.  492 

Note  on,  prohibiting  stabling  of  more  than  tun  horses  void x.  IGO 

PARDON. 

Extent  of  relief  afforded  by,  of  Oovemor iv.  460 

— -  Where  a  statute  provides  additional  punishment  upon  a  second 
conviction  for  a  like  offense,  if  defendant  received  a,  for  the  first 

offense  the  statute  does  not  obtain. .  iv,  460 

Right  of  convict  who  has  received  and  accepted  a  conditional, 

to  have  a  hearing  when  arrested,  before  being  remanded,  because  of 

an  alleged  breach  of  the  condition ix.  487 

On  such  a  hearing  court  may  take  verdict  of  jury ix.  487 

Note  on  power  to.... ix.  493 

Note  on  conditional, — conditions  permissible,    breach,  enforcing 

forfeiture,  etc....... ix.  498 

PATENT  LAWS. 

Patentee  not  protected  by,  against  violations  of  State  laws! iv.    16 


PAGE. 

teral 
.iv.  458 
..iv.  470 
pub- 

...V.  578 
d    in 
...V.  881 
lyor. 
..  V.  881 
...V.  581 
,..vi.  544 
..vi.  544 
acula- 
,  vii.  479 
...vi.  544 
...vi.  548 
,  ..vi.  551 
hould 
...vi.  418 
. .  .vi.  418 
od  of 
...vi.  418 
...vi.  418 
—  do 
...vi.    81 
)rk  on 

.vii.  470 

trial 

.vii.  479 

..X,  402 

sup- 

..vii.  492 
.X.  ICO 

iv.  460 
lecond 

first 

.iv,  460 
bional, 
use  of 

.ix.  487 
...ix.  487 

.ix.  492 
yrdng 
...ix.  498 

....iv.    16 


AMERICAN  CRIMINAL   REPORTS.  738 

PENAL  STATUTES.  p^o^ 

Note  on  strict  construction  of , ^     oa 

PERJURY. 

Cun  not  be  assigned  on  an  oath  administered  by  an  election  judge 
who  himself  has  not  been  sworn ;  1.  407 

—  Amount  of  evidence  required  to  sustain  conviction  for,  i.  503,  ii. 

410,  iv.  470,  vii.  498 

Sufficiency  of  indictment  for j.  bo4,  v.  688 

Swearing  falsely  and  corruptly  to  a  circumstance  materially  tend- 
ing to  establish  the  principal  fact  in  issue  constitutes, i.  500 

Endeavoring  to  induce  a  witness  to  commit,  in  a  suit  to  be 

brought  hereafter ii_  gjQ 

False  swearing  before  fire  marshal  is  (New  York) ii.  416 

Indictment  for,  alleged  defendant  swore  at  time  of  fire  he  had 

sixty  thousand  cigars  in  store  and  proof  showed  he  swore  he  had  sixty 

thousand,  variance   not  material ii,  419 

No  inconsistency  of  verdict  of  guilty  under  first  count  and  not 

guilty  under  second  count  in  indictment  containing  two  counts,  first 
one  charging,  in  the  oral  testimony  before  the  marshal,  and  the 
second  charging,  in  s'vearing  to  an  affidavit  before  the  same  officer 

ii.  416 

Person  who  wilfully  and  corruptly  swears  falsely  to  an  affidavit 

of  ownership  in  an  action  of  detinue  is  guilty  of  legal, iv.  465 

Materiality  of  matter  falsely  sworn  to iv.  465;  ix.  421 

Denial  of  having  been  in  prison  is,  if  false iv.  474 

An  indictment  charging  a  member  of  a  Iward  with,  in  that  he  had 

violated  his  official  oath,  is  defective  without  allegation  of  the  elec- 
tion of  the  requisite  number  of  members  of  the  board,  and  that  they 

qualifled  and  acted  as  such v.  691 

In  indictment  for,  jurisdiction  and  authority  of  the  officer  to 

administer  the  oath  must  be  properly  averred vi.  551 

Note  on  form  and  requisites  of  indictment  for vi.  555;  vii.  497 

Insufficiency  of  indictment  charging  party  with,  in  making  false 

return  of  his  taxable  personal  property vi.  651 

The  guilt  of  one  falsely  swearing  does  not  depend  upon  the  result 

of  investigation  in  which  false  testimony  was  given vi.  556 

—  Witness  waiving  privilege  of  refusing  to  answer  questions  tending 

to  criminate  himself  is  guilty  of,  if  he  testifies  falsely vi.  556 

Instruction  as  to  reasonable  doubt  in  a  prosecution  for, vi.  556 

Petitioner  in  insolvency  wilfully  omitting  from  his  schedule  any 

of  his  property  and  then  verifying  his  petition  is  guilty  of, vii.  499 

Re<iuisite8  of  indictment  for.  and  procedure vii.  495 

Note  on  subornation  of, vii  499 

False  oath  as  to  qualification  as  elector viii.  625 

Requisites  of  indictment  for,  in  making  false  oath  as  to  qualifica- 
tion for  elector viii.  625 

Rebutting  the  testimony  as  to  motive  in  prosecution  for, viii.  686 

Weight  of  evidence • viii.  636 

In  prosecution  for,  not  admissible  to  prove  the  account  given  by 

accused  out  of  court .• viii.  636 


724 


INDEX  TO  VOLS.  I  TO  X. 


PWLJVUY— Continued.  page. 

Evidence  as  to  financial  condition  of  person  in  whose  belialf,  was 

alleged  to  have  been  committed  not  admissible viii.  63G 

Where  assignment  of,  eniLraces  several  particulars  not  error  for 

court  to  lay  stress  on  one  of  them viii.  686 

How  knowledge  of  witness  that  his  testimony  is  false  is  tested,  viii.  636 

Instructions viii.  636 

Allegation  and  proof  in  a  prosecution  for  having  committed,  in  a 

personal  injury  case ix.  426 

— —  Immaterial  fact  rendered  material  by  circumstances ix.  426 

— —  Declarations  of  defendant  made  out  of  court  in  support  of  his  evi- 
dence inadmissible ix.  426 

Note  on  conviction  for,  had  on  circumstantial  evidence ix.  436 

— —  Note  on  instructions ix.  436 

Note  on  what  constitutes, ix.  424 

PERSONAL  PROPERTY. 

Growing  crop  is,  within  Larceny  Statute v.  694 

PHOTOGRAPHY. 

Ck)urt8  take  judicial  notice  that,  produces  correct  likenesses i.  311 

PHYSICIANS  AND  SUROEONS. 

Physician  prescribing  for  sick  person  with  gross  recklessness  may 

be  guilty  of  manslaughter v.  391 

Standard  by  which  physician  is  to  be  tried v.  391 

Validity  of  law  requiring,  to  submit  to  examination,  and  take  out 

license x.  445 

PLEA. 

Record  must  affirmatively  show  that  defendant  pleaded  to  indict- 
ment  i.  602,  604,  606 

Where  defendant  pleaded  before  justice,  there  need  not  be  new, 

entered  in  appellate  court i.  605 

Ck)urt  no  power  to  supply,  after  verdict  without  defendant's  con- 
sent  i.  606 

Where  respondent,  not  having  pleaded,  announces  himself  ready 

for  trial  the  omission  of  the,  will  not  avail  him  on  a  motion  for  new 

trial  or  in  arrest i.  567 

Hee  Note » ii.  485 

Until  after  defendant  enters  a,  there  is  no  issue  formed  and  can  be 

no  valid  trial ii.  484 

Of  not  guilty  renders  formal  arraignment  unnecessary iii.  332 

Note  on  leave  to  withdraiv,  of  guilty x.  463 

Immaterial  whether,  is  made  by  defendant  or  by  his  counsel.. . .  v.    20 

PLEADING  AND  PRACTICE. 

Presence  of  respondent  in  court  during  argument  of  motion  for 

new  trial  not  necessary i.  311 

Presence  of  respondent  on  trial  for  misdemeanor  not  necessary,  .i.  600 

Transcript  of  a  count  in  indictment  before  Supreme  Court  show- 
ing embezzlement  charged  as  ^ione  "with"  instead  of  "without" 
owner's  consent  fatally  defective   i.  166 


AMERICAN  CRIMINAL  REPOKTS.  725 

PLEADING  AND  PRACTICE-ConftnueA                                     page. 
It  is  not  admissible  to  allege  in  an  indictment  for  fraudulently  dis- 
posing of  mortgaged  property  and  prove  on  trial  a  mistake  in  the  de- 
scription of  the  mortgaged  property  in  the  mortgage i.  B30 

Appeal  will  be  dismissed  where  prisoner  escapes  during  pendency 

of  appeal  proceedings i.  612,  613,  iv.  477 

Jury  may  lie  discharged  on  Sunday i.  539 

Recharging  jury  in  absence  of  respondent's  counsel,  error. i.  536, 

vii.  564 

Joint  verdict  and  judgment  against  several,  which  is  erroneous  as 

to  one  must  be  reversed  as  to  all i.  103 

Joint  verdict  as  to  three,  erroneous  as  to  two,  may  be  set  aside  as 

to  those  two  and  allowed  to  stand  as  to  the  third i.  597 

Quashing  indictment  or  information,  for  want  of  sufficient  evi- 
dence, before  the  examirjing  magistrate  or  grand  jury ii.  470 

Objection  to  validity  of  indictment  that  it  was  found  without 

any  legal  evidence  must  be  taken  by  a  motion  to  quash ii.  470 

When  plea  in  abatement  to  an  indictment  that  the  prosecutor  was 

not  sworn  to  testify  before  th.<3  grand  jury  as  to  matters  alleged  therein 

is  good ii.  654 

Where  plea   in  abatement  is  held  good  and   jury  discharged 

without  verdict,  upon  plea  of  not  guilty,  prisoner  should  be  held  to 

answer  new  indictment ii.  654 

Quashing  indictment  found  on  testimony  of  witnesses  sworn  in 

open  court "  658 

Legislative  power  to  prescribe  when,  how  and  Sy  whom  infor- 
mation may  be  exhibited  against  person  for  any  criminal  offense,  .ii.  117 

• Formal  adjudication  on  preliminary  examination  not  necessary 

as  a  basis  for  filing  an  information ii.  117 

Information  filed  by  State's  Attoniey  need  not  be  for  the  offense 

charged  in  the  complaint  before  the  magistrate ii.  117 

Information  need  no^  state  preliminary  examination  was  had— 

defendant  relying  upon  absence  of  such  examination  should  plead  it 

in  abatement ...n.  117 

Note  on  preliminary  requisites  of  putting  a  person  on  trial  for 

felony "•  ^^^ 

Indictment  may  be  sufficient  though  it  does  not  specifically  allege 

commission  of  ci  ime  charged  in  the  State — »•  449 

Necessary  to  state  mode  of  commission  of  offense  as  proved  at 

trial ;•;•••,;."•*'' 

Averment  of  ownerahip  in  indictment  for  burglary  of-  dwellmg 

house  of  "  deceased" "•  ^^ 

The  judge's  presence  throughout  entire  trial  necessary  and  same 

can  not  be  waived  by  defendant .n.  448 

Conviction  reversed  where  prisoner  in  court  during  trial  is  kept 

Demurrer  to  evidence  waives  jury  and  empowers  court  to  pass 

.    .  .  u.  863 

judgment  „  .    ,    . ,  , 

Exceptions  to  charge  of  court  should  point  out  definitely  the  part 

of  the  charge  excepted  to,  and  state  grounds  of  exception u.  3d-J 


726 


INDEX  TO  VOLS.  I  TO  X. 


PLEAUIN6  AND  PRACTICE— Conhnwed  page. 
Error  to  omit  to  direct  attention  of  the  jury  to  the  necessity  of 

finding  a  felonious  intent,  in  instruction  stating  to  jury  on  what  facts 

they  may  find  defendant  guilty ii.  832 

— —  Proper  instruction  where  indictment  contains  one  count,  for  rob- 
bery and  one  charging  assault  with  intent  to  rob ii.  44G 

Order  of  I'roof  within  discretion  of  trial  judge i      188 

Allowance  of  writ  of  error  nunc  pro  tunc .  u    362 

Appeal  only  lies  after  final  judgment ii.  427 

Continuutg  trial  from  day  to  day  where  jury  is  sworn  on  last  day 

of  term ii.  290 

Repeal  of  the  law  pending  appeal ii.  485 

Discharge  on  account  of  delay  of  trial ii.  251 

Preliminary  examination  condition  essential  to  a  prosecution  for 

crime iii,  308 

- —  Plea  of  guilty  extorted  by  court  will  not  sustain  conviction iii.  808 

Challenging  jurors  when  two  are  tried  together ii: ,  Mi 

Proof  must  be  confined  to  the  distinct  offense  first  fixed iii  '^\H 

I'he  State  can  not  give  evidence  of  several  offenses  when  only  one 

is  charged  and  select  one  to  rely  upon  after  evidence  is  in iii.  308 

Prosecuting  attorney  may  be  required  to  testify  as  to  evidence 

given  before  the  grand  jury .iii.  353 

Limiting  argument  of  defendant's  counsel iii.  373 

Defendant's  absence  during  part  of  argument  does  not  prevent 

conviction iii.  322 

Verdict  can  not  be  received  in  defendant's  absence iii.  304 

Exceptions  to  avail  on  appeal  must  have  been  taken  on  trial. .  .iii.  218 

Conviction  of  lower  crime  than  the  one  charged iii,  836 

Trial  before  attorney  acting  as  a  special  judge  void iii.  321 

Failure  of  judge  to  keep  minutes  of  evidence  will  not  work 

reversal iii.  307 

Judge's  minutes  not  a  part  of  the  record iii.  307 

Improper  to  settle  a  bill  of  exceptions  so  that  the  rulin^^'s  to  be 

reviewed  are  scattered  through  a  long  record iii.  260 

Right  of  State  to  sue  out  writ  of  error iii.  350 

Indorsement  after  going  to  trial  upon  information  of  names  of 

additional  witnesses  must  be  by  leave  of  court iv.  476,  485 

— —  Such  names  can  not  be  indorsed,  against  objection,  without  a  show- 
ing that  they  were  not  known  earlier iv.  357 

Unnecessary  words  in  information,  not  prejudicial  to  defendant, 

should  be  disregarded iv.  485 

Substituting  copy  where  indictment  is  lost  or  mislaid iv.  482 

Presumption  that  defendant  was  arraigned iv.  491 

Writ  of  error  from  United  States  Supreme  Court  to  Territorial 

Supreme  Court  allowed  when iv.  494 

Motion  to  quash  addressed  to  discretion  of  court  and  its  decision 

thereon  not  reviewable  on  writ  of  error iv.  477 

Plea  in  abatement  will  not  lie  where  court  orders  required  number 

of  jurors  from  the  county  at  large iv.  479 

Where  rule  is  taken  on  witnesses,  disobedience  renders  witness 

guilty  of  contempt  but  not  incompetent iv.  483 


T^ 


AMERICAN  CRIMINAL  REPORTS. 


727 


PLEADING  AND  PBACTICE-ConftnMcrf.  page. 

Argument  of  counsel  confined  to  the  evidence iv.  338 

Prosecutor  not  allowed  to  comment  on  defendant's  failure  to 

testify , iv.  516,  529,  vii.  520 

What  grand  juror  may  be  required  to  testify  to iv.  523 

Objection  to  indictment  for  omissions  sliall  be  taken  before  the 

jury  is  sworn iv.      6 

Serving  copy  of  indictment  and  list  of  jurors  upon  defendant,  .i v.    48 

Granting  continuance  within  discretion  of  court iv.    43 

Accused  not  entitled  to  a  commission  to  take  testimony  of  wit- 
nesses residing  in  anothsr  State iv.    43 

Civil  Practice  Act  not  applicable  to  criminal  proceilure iv.  240 

Hand(!Ufflrg  prisoner  to  restrain  his  violence  pending  motion  for 

new  trial  not  error iv.  895 

It  is  within  discretion  of  court  where  witnesses  have  been  ex- 
cluded from  r(X)m  to  allow  witness  who  has  remained  to  testify . . .  iv.  548 

An  onler  fixing  time  of  sentence,  after  conviction  of  felony  is  not 

appoaliible v.  592 

State  may  examine  witnesses  in  support  of  indictment  found  on 

minutes  of  testimony  given  before  a  committing  magistrate v.  594 

Ni'ithor  defendant  nor  his  counsel  in  the  absence  of  notice  are 

bound  to  be  in  court  on  Sunday  on  the  coming  in  of  a  jury v.  599 

Refusal  of  trial  judge  to  recall  jury,  where  verdict  had  been  re- 
ceived in  defendant's  absence,  that  defendant  might  have  it  polled, 

ground  for  new  trial v.  599 

Prisoner  or  counsel  may  enter  plea  on  arraignment v.    20 

Absence  of  prisoner  during  argument  on  motion  to  quash  indict- 
ment not  error '•  517 

Withdrawal  of  plea  of  not  guilty  rests  in  discretion  of  court v.  517 

Covu-t  may  permit  indoreement  of  names  of  additional  witnesses 

uixin  information  after  trial  has  commenced v.  538 

. Arraignment  of  defendant  must  appear  in  record  of  conviction. v.  635 

Defendant  procuring  new  trial  waives  right  to  plead  former  jeop- 

,  V.    66 

iirdv 

FtTect  of  plea  of  former  conviction  after  demurrer  thereto  sus- 
tained  ^'    80 

Prosecution  not  conflnetl  to  witnesses  indorsed  on  mdictment.  .v.    20 

The  fact  that  list  of  petit  jurors  was  not  furnished  defendant  be- 
fore arraignment  does  not  invalidate  conviction v.    20 

Counsel  may  be  employed  to  assist  State's  Attorney .  .v.  54.  499,  vii.  509 

No  appeal  lies  from  an  order  denying  defendant  a  new  trial  on  a 

plea  of  former  conviction. '^^  o^^ 

Motion  for  bill  of  particulars  addressed  to  discretion  of  court. .  .v.  832 

Sufficiency  of  return  of  indictment v.  517 

What  affidavit  for  continuance  must  show vi.  461 

Cumulative  evidence  not  ground  for  continuance vi.  461 

Requisites  of  affidavit  to  procure  attendance  of  non-resident  wit- 

^  vi.  461 

ness .  .  , 

Presumption  of  service  of  copy  of  indictment  and  speoial  venire 

,  ,     j*^  .  vi.  525 

on  defendant _ .   _ ., 

Plea  of  guilty  waives  right  of  trial  by  jury >»•  04- 


728 


INDEX  TO  VOLS.  I  TO  X. 


PLEADING  AND  VltkCTlCE— Continued.  page. 

Improper  remarks  of  counsel  must  be  excepted  to  and  the  courts 

ruling  obtained  thereon,  otherwise  question  not  reviewable  in  Appel- 
late Court vi.  21,  65,  487 

Opening  statements  should  present  facts  not  arguments vi.  508 

Record  failing  to  show  that  indictment  was  returned  into  open 

court  not  a  statutory  cause  for  motion  in  arrest vi.  51,  397 

Indictment  and  indoisements  part  of  the  record vi.    51 

Where  indictment  contains  two  counts,  unless  each  charge  sep- 
arate ofFenae  State  can  not  b^  required  to  elect vi.  407 

Prefatory  remarks  by  cou  't  to  jury,  before  directing  a  poll  not 

error vi.  407 

Adjournment  of  term  to  be  next  held  in  another  county  proper,  vi.    88 

Where  indictment  not  indorsed  by  foreman  of  grand  jury  motion 

to  quash  sustained vi.  296 

Trial  without  plea  a  technical  error,  affording  no  ground  for 

reversal vi.  335 

Withdrawal  of  plea  of  guilty  after  judgment vi.  542 

Amendment  of  trial  docket  nunc  pro  tunc  not  error vii.     11 

Improper  remarks  of  counsel vii.  187 

Reading  law  books  to  jury  not  reversible  eiTor vii.  153 

Uncertain  and  defective  plea  in  abatement  demurrable vii.  188 

Where    trial  is   had  without  a   plea  objection  must  be  made 

below vii.  188 

Requiring  repetition  of  question  and  answer vii.  502 

Motion  for  change  of  venue  by  one  of  two  defendants  jointly 

indicted  effects  a  severance  but  the  other  need  not  be  present  when 

motion  is  made vii.  509 

Jury  inspecting  locality  of  crime vii.  509 

Misconduct  of  counsel  must  prejudice  substantial  rights  of  accused 

to  be  revei-sible  error vii.  ."iOft,  583 

Note  on  duty  of  trial  court  to  keep  counnel  unthin  limits  of  legiti- 
mate debate vii.  523 

Evidence  touching  misconduct  of  jurors  should  all  be  incorporated 

in  bill  of  excepti(ms vii.  509 

Note  OH  defendant  as  a  witness vii.  528 

Admission  of  incompetent  evidence  must  be  objected  to  at  the 

time vii.  529 

Cross-examination  of  witness  waives  objection  to  incompetency 

of  his  testimony vii.  529 

No  rule  of  law  requiring  either  party  to  hold  or  call  a  witness.,  vii.  532 

Motion  for  special  venire  under  statute vii.  533 

Affidavit  as  evidence  of  prejudice  of  sheriff vii.  533 

On  appeal  from  justice  defendant  may  withdraw  plea  of  guilty,  vii.  541 

Holding  two  courts  in  same  circuit  at  same  time vii.  545 

Irregular  holding  of  term  waived  where  defendant  appears  and 

goes  to  trial  without  objection vii.  645 

Attorney  paid  by  private  party  to  assist  prosecutor  not  a  proj^r 

attorney  to  qid  in  the  prosecution  (Wis.) vii.  556 

Note  on  presence  or  abseiwe  of  prisoner  as  affecting  criminal  pro- 
ceedings  vii.  566 


■^ 


509 
509 

583 

523 

509 

528 

529 

r 

529 
,  532 
583 
.  533 
.  541 
.  545 
id 

i.  543 
?r 
556 

i.  566 


AMERICAN  CRIMINAL  REPORTS.  729 

PLEADING  AND  PRACTICE-Con<i»iMed.  paoe. 

Admission  of  evidence  not  affecting  the  issue  can  not  be  assigned 

as  error ^jij   jqq 

Refusal  of  charge  requested  by  defendant  substantially  embodied  in 

the  general  charge,  not  error viii.  100 

What  will  be  considered  upon  petition  for  rehearing viii.  838 

Exclusion  of  evidence  on  the  ground  tliat  indictment  charges  no 

offense  discharges  jury  without  verdict viii.  873 

Exclusion  of  irrelevant  evidence  not  error viii.  574 

Jury  viewing  premises  where  alleged  nuisance  exists viii.  619 

Effect  of  defendant  waiving  preliminary  examination ix.  108 

Errors  of  law  to  be  available  on  appeal  nmst  have  been  raised  in 

trial  court ix.  117 

— —  Sentence  is  suspended  by  supersedeas,  not  by  appeal ix.  404 

Control  of  court  over  verdict ix   746 

Evidence  excepted  to,  not  incoriwrated  in  record,  not  reviewed  .ix.    28 

Conviction  set   aside  where    record  does   not  show    prisoners 

presence  when  verdict  was  rendered ix.  348 

A  corporation  is  indictable  at  common  law ix.  370 

—  Refusal  to  certify  on  stenograpiier's  transcript  of  certain  oral  in- 
structions as  given,  which  are  made  part  of  bill   of  exceptions  not 

error ix.  596 

— —  Nolle  pronequi  of  one  count  leaves  indictment  as  though  such 

count  had  not  been  inserted  therein ix.  161 

An  escaped  convict  sentenced  for  another  crime  after  expiration 

of  term  of  imprisonment  for  that  crime,  may  be  held  to  serve  out 

remainder  of  first  sentence ix.  711 

Sufficiency  of  form  of  criminal  complaint  not  considered  wJien 

raised  for  the  first  time  on  appeal x.  445 

^—  Note  on  continuance x.  461 

Note  on  motion  in  arrest  ofjudgnu.it x.  462 

Delaying  arraignment  after  indictment  to  enable  accused  to  pre- 
pare preliminary  defense  is  within  the  discretion  of  the  court x.  456 

Affidavit  of  accused  for  continuance  taken  as  true x.  456 

See  Continuance;  Embezzlement;  Instructions;  Jeopardy; 
Juby;  Larceny;  Liquor  Selling;  Murder;  New  Trial;  Obscenity; 
Pbosecutino  Attorney;  Reasonable  Doubt;  Record;  Refutation; 
Seduction;  Sentence;  Venue;  Verdict, 

POLICE  POWER. 

Legislation  for  protection  of  the  public  health  is  a  valid  exercise 

of, vii.    82 

ffote  on,  conntruction  of  and  prosecutions  under  statutes  enacted 

through,  of  State vii.  65,  494 

Regulating  keeping  of  dogs  and  enforcing  such  regulations  by  for- 
feiture, fines  and  penalties,  within  the,  of  the  State vi.  544 

Prohibiting  niaintcnamv  of  pigpens  within  one  hundred  feet  of 

any  dwelling  or  well  or  spring  used  for  drinking,  irrespective  of  local- 
ity, unauthorized  by ^'  ^^ 

POLLING  JURY. 

See  Jury. 


!   Hi 


I 


1 


\m 


730  INDEX  TO  VOLS.  I  TO  X. 

POLYGAMY.  PAGE. 

On  trial  for,  letter  identified  as  having  been  written  and  signed  by 
defendant  admissible  against  him ix.  408 

—  Te-itimony  of  persons  present  at  a  marriage  competent  to  prove  it. 

ix.  408 
Proof   of   ordination    not  necessary  to  render  admissible  testi- 
mony of  minister  who  performed  marriage  ceremony ix.  408 

Belief  in  death  of  former  wife  or  husband  not  a  defense  to  a 

prosecution  for, ix.  408 

Note  on  what  conatitutea ix.  413 

POST  OFFICE. 

Using  the  mails  to  promote  a  scheme  to  defraud  is  an  **  infamous 
crime,"  and  a  conviction  tliereof  is  reviewable  on  error  in  United 
States  Supreme  Court ix.  480 

PBELIMINARY  EXAMINATION. 

Is  not  a  judicial  proceeding  and  mere  irregularities  do  not  vitiate  it. 

i.  618 
Note  on  depoaition  of  defendant  taken  at  his,  admissible  to  im- 
peach hia  teatimony  on  trial x.  200 

See  Pleading  and  Practice. 

PRESUMPTIONS. 

Of  fact  wholly  within  the  disposal  of  a  jury i.  01 8 

Of  forging  from  proof  of  uttering i.  ^iJO 

As  to  degree  of  murder i.  251 

Of  guilt  arising  from  possession  of  goods  recently  stolen . . .  iv.  88, 

vi.  21,80,  403 

See  Note vi.  82  x.  i;;« 

— —  Of  incapacity  of  infant  to  commit  crime  charged iv.  392 

That  defendant  was  arraigned,  and  pleaded,  altliough  record  does 

not  disclose  such  facts iv.  401 

As  to  intent vi.  4,11,  vii.  489 

Note  on,  aa  to  intent vi,  435,  vii.  441 

That  indictment  was  found  in  the  manner  the  law  directs. . .  .vi.  556 

Note  on,  aa  to  regidarity  of  proceedings  uf  inferior  courts vi.  569 

Note  on,  of  guilt  arising  from  the  jiossession  of  property  recently 

atolen  in  proaecutiona  against  receivers  of  stolen  property vi.    83 

Arising  from  attempt  to  escape vi.    88 

As  t'^  propriety  of  remar'  s  of  prosecutor,  objection  to  which  was 

overruled vii.  106 

— —  In  favor  of  innocence  and  of  lessor  offeiiKe vii.  428 

Of  continuance  of  marriage  status  in  trial  for  adulttM7 viii.     14 

On  appeal x.  140 

As  to  sanity  of  defendant x.  828 

PRINCIPAL  AND  ACCESSORY. 

Charging  accessory  before  the  fact  as  principal  (Kansas) iv.  620 

All  accessories  before  the  fact  are  principals  (Illinois) vi.  570 

Upon  trial  of  accessory  before  the  fact  other  evidence  of  commiHsioii 

of  the  crime  by  principal  than  the  record  of  hia  conviction  adiniHsihio 

iv.  410,  529 


p^ 


...i.  OlS 
...i.  2150 
...i.  251 
.  m, 

l.SO,  402 
1«2  X.  i:;» 
iv.  392 
does 
.iv.  491 
,  vii.  489 
,  vii.  441 
..vi.  55tt 
.vi.  569 

vi.    83 

vi.    88 

was 

vii.  106 

.vii.  42« 

.viii.     14 

X.  140 

X.  829 


.iv.  529 
.vi.  570 

li^Hidn 

i<)4il)lu 
410,  539 


AMERICAN  CRIMINAL  REPORTS.  ^81 

PRINCIPAL  AND  ACCESSOR Y-ConfinMCff.  page. 
Conviction  of  one  charged  aa  principal  in  second  dcRrep  is  con- 
trary <o  law  where  there  is  no   evidence  of  the  guilt  of  tlie  prin- 
cipal in  the  first  degree v.  553 

iVo<e  on  acveHsories  indicted  aa  principals x.  32b 

Note  on  coninction  of  aiders  and  abettors  as  jtrincipuls .x.    25 

All  persons  connected  with  the  coiiiinisdion  of  a  misdemeanor  are 

principals x.  419 

One  operating  game  device  for  another  is  a  principal x.  419 

PRINCIPAL  AND  ACCOMPLICE. 

Credit  testimony  of  accomplice  entitled  to  exclusively  within  the 

province  of  the  jury i.  618 

Evidence  showing  accused  guilty  as  accomplice  to  murder  will 

not  support  his  conviction  as  principal v.  477 

PRIVILEGED  COMMUNICATIONS. 

What  are  and  what  are  not,  between  solicitor  and  client.v.  140, 

vii.  11,  viii.  225 

AcTvice  of  counsel  sought  with  a  view  to  commit  crime vi.  436 

Between  husband  and  wife vi.  206 

Between  physician  and  patient vi.  194 

Sote  on,  between  counsel  and  client vii.  21,  viii.  232,  x.  296 

In  a  prosecution  for  arson  against  wife  for  proving  commimity 

property  communications  between  her  and  lier  husband  prior  to  com- 
mission of  offense  are  not x.    81 

PRIZE  FIOHTING. 

What  constitutes viii.  656 

SufHciency  of  indictment  for viii.  656 

Note  on  nature  of  offense viii.  663 

PROSECUTING  ATTORNEY. 

Comments  of,  on  frequency  of  crime,  lax  administration  of  law, 
etc.,  improper  in  addressing  jury i.  583 

Saying  "  defendant  was  such  a  scoundrel  he  was  compelled  to 

move  his  trial  from  his  own  county  to  one  in  which  he  was  not 
known,"  reversible  error >•  580 

For,  to  say  "  the  bold  and  brazen  faced  rascal  had  the  impudence 

to  write  me  a  note  yesterday,  begging  me  not  to  prosecute  him," 
etc.,  is  error i.  580 

Duty  of  court  to  protect  pi  iw)ner  fronx  unreasonable  and  unfair 

statements  and  arguments  of, .i.  580 

W}v»v«  nrivate  counsel  not  allowed  to  assist,  in  pn^eeution  of  crim- 

.     ,  i.    91 

jn«l  cases •••       . 

Preliminary  examinations  in  felony  cases  conducted  by  private 

,  i.    91 

counsel ;•  '  .        ,     ■  ^,  , 

Trial  judge  should  not  permit,  to  argue  to  jury  that  m  a  doubtful 

case  it  is  safer  to  convict  than  to  acquit  on  the  ground  of  defendant's 

.    ,  ^      e  I  >'•   813 

right  of  appeal 

™  »T      1  U.       01  < 

See  ^ote . 

On  margin  of  instructions  handed  jury  penciling,  "  This  is  among 


l! 


i4-t 


732 


INDEX  TO  VOLS.  I  TO  X. 


PROSECUTING  ATTORNEY-Con<t>nied.  page. 

a  people  of  loose  ways;  try  to  elevate  your  race."  not  reversible  error 
where  guilt  of  accused  was  establiHlied  beyond  all  doubt ii.     18 

— —  Duty  of,  as  to  calling  all  attainable  witnesses ii.     79 

— ^  Not  error  to  allow  private  counsel  to  assist,  although  defendant 

objects  (Iowa) iii.      1 

See  Note,  contra iii.      4 

Can  not  declare  the  law  to  the  jury  to  the  prejudice  of  defendnnt  .iii.  188 

— —  Seeking  to  induce  witness  to  suppress  testimony  or  to  volunteer 
improper  testimony  may  be  shown iv.  857 

Withholding  testimony  justifies  unfavorable  inference  and  court 

should  so  instruct  jury iv.  563 

Can  not  comment  on  failure  of  defendant  to  testify iv,  510,  520 

Attention  of  trial  court  should  be  called  to  language  of,  prejudi- 

cial  to  accused  by  proper  objection  and  a  ruling  had  thereon,  other- 
wise Appellate  Court  will  not  review  the  question vi.  21,  65,  487 

Legislature  has  power  to  provide  for  the  commencement  of  crim- 
inal prosecutions  by  other  officer  than vi.  548 

— -  Where,  comments  at  length  upon  improper  testimony,  with  intent 
of  prejudicing  defendant,  when  arguing  for  its  admission  refusal  of 
of  trial  judge  to  prevent  his  remarks  error viii.  484 

Where  in  a  prosecution  for  abduction,  says  to  the  jury,  '*  defend- 
ant does  not  deny  the  enticing  and  taking  of  the  prosecuting  wit- 
ness," and  the  court  sustains  objection  to  remark  and  advises  jury 
that  a  plea  of  not  guilty  denies  everything,  the  remark  does  not 
constitute  reversible  error ix.     38 

An  assertion  by,  that  defendant  is  a  thief,  and  a  ruling  by  the 

court  that  the  evidence  warranted  the  remark,  is  ground  for  revei-sal 

X.  151 
PROSTITUTION. 

"Illicit  sexual  intercourse"  is   not,  within  the  statute   against 

abduction  for  purpose  of, , i.  25 

Defined i.  25 

Indictment  charging  taking  female  for,  and  concubinage,  bad 

for  duplicity v.  1 

To  convict  of  abduction  for,  the  purpose  must  be  shown vi.  1 

PROVOCATION. 

Seeing  married  sister  in  the  act  of  adultery  is  not  such,  as  will 
reduce  killing  the  adulterer  to  manslaughter i.  283 

PUBLIC  OFFENSE. 

Violation  of  city  ordinance  punishable  by  fine  or  imprisonment 

is  a vi.  418 

See  Note vi.  429 

PUBLIC  RECORDS  AND  D0CU.1IENTS. 

Transcript  of,  admissible  against  defendant  ir  criminal  case i;  806 

RAPE. 

On  trial  for,  respondent  has  a  right  to  prove  previous  particular 

acts  of  sexual  intercourse  between  prosecutrix  and  others i.  6S0 

Contra uc.  848 


% 


AMERICAN  CRIMINAL  REPORTS.  733 

UWE— Continued. 

paqe 

Withdrawal  of  consent  once  given  by  prosecutrix  makes  forcible 

continuance  by  defendant  of  sexual  act. ...  t   tua 

^^^ote ■.::::::::::::■.:: iZ 

Aote  on  measure  of  resistance i   600 

Complaint  of  prosecutrix  made  two  months  after'  commission  of 

a,  admissible  against  defendant j   q^q 

Particulars  of  such  complaint  not  admissible i  640 

On  females  over  twelve  years  of  age  and  under  distinguished. . . .  i.  648 

A  charge  that  if  defemlant  intended  "to  gratify  his  passion  upon 

the  person  of  the  female  either  by  force  or  surprise,  and  against  her 

consent,  then  he  is  guilty  as  charged "'  is  erroneous ii.  583 

Note  on  force  as  an  essential  ingredient  of  the  crime  of. . . . .  ',..\i  685 

Statement  of  sister  of  prosecutrix  in  a,  case  that  the  latter  made 

complaint  to  her  of  the  commission  of  the  act  on  the  following 

morning  admissible ii.  586 

To  sustain  a  verdict  of  guilty  on  trial  for,  jury  must  be  satisfied 

beyond  a  reasonable  doubt  that  prosecutrix  did  not  yield  her  consent 

during  any  part  of  the  act ii.  536 

A  charge  in  a,  case  that  if  the  jury  should  find  defendant  used 

force,  and  complainant  resisted  so  far  as  she  could  under  the  circum- 
stances, they  should  find  him  guilty,  even  though  they  found  she  at 

last  yielded,  is  erroneous ii.  536 

Not  error  to  instruct  jury  that  a  female  child  under  age  of  con- 
sent can  not  in  a  legal  sense  consent  to  an  act  of  carnal  intercourse 

ii.  580,  vii.  58.5 

—  Defendant  in,  ca^e  can  not  be  convicted  on  uncorroborated  evi- 
dence of  prosecutrix  admitting  herself  to  be  unchaste ii.  690 

——To  constitute,  there  must  be  the  utmost  resistance  and  reluctance, 
and  no  assent  through  a  forced  submission iii.  391,  viii.  664 

Physician  advising  prosecutrix  that  a  surgical  operation  should  be 

performed,  and  under  pretense  of  performing  it,  having  carnal  inter- 
course with  her  is  guilty  of, iii.  454 

See  Note,  contra iii.  458 

—  In  a  prosecution  for,  asking  prosecutrix  whether  or  not  she  had 
told  her  priest  or  others  of  the  outrage  is  not  objectionable iii.  379 

Whether  it  would  be  error  to  allow  prosecutrix  on  a  charge  of 

rape  to  state  what  she  had  told  to  others  about  the  affair,  quaere .  .iii.  879 

In,  case  the  time  at  which  the  victim  made  first  complaint  of 

the  outrage  is  a  relevant  circumstance iii.  379 

Details  of  complaint,  made  on  day  of  outrage  admissible iii.  386 

See  Note vii.  591 

Note  as  to  admissibility  of  the  particulars  of  complaint iii.  383 

In  prosecution  for,  defendant  may  give  evidence  of  previous  spe- 
cific acts  of  illicit  intercourse  on  part  of  prosecutrix iii.  886 

Where  prosecutrix  is  daughter  of  defendant  she  may  show  the 

great  strength  of  her  father,  cruelty  to  his  family  and  drunkenness .  iii.  879 

Averment  of  force  and   want  of  consent  in  indictment  for,  of 

child  under  age  of  consent,  not  necessary iii.  836 

—  Such  averment  necessary  to  sustain  a  conviction  for,  of  female 
over  age  of  consent iii.  836 


734 


INDEX  TO  VOLS;  I  TO  X, 


RAPE— Conh'nuefl.  PAGE. 

Consent  of  female  child  under  age  of  consent  no  defense . .  iv.  682,  x.    87 

Such  A  child  may  submit  without  legally  consenting iv.  683 

Prosecutrix  may  be  questioned  as  to  lier  object  in  going  to  the 

place  where  the,  was  alleged  to  have  been  committed iv.  673 

The  extent  of  resistance  must  de|H.'nd  upon  the  peculiar  circum- 
stances of  each  particular  case v.  601 

At  common  law  boy  under  fourteen  years  of  age  presumed  to  lie 

incapable  of  committing v.  012,  ix.  444 

Note  on  death  penalty  as  punishment  for v.  615 

Husband  may  be  an  accessory  to,  on  his  wife vii.  608 

See  Note viii.  686 

Evidence  of  penetration  necessary  to  support  verdict  of  guilty,  vii.  677 

Note  on  penetration  as  essential  to  conviction  for vii.  688 

—  Where  prosecutrix  is  a  child  twelve  years  old  testimony  of  physi- 
cian as  to  whether  the  privates  of  a  well  develo|>ed  man  could  enter 
hers  is  pro)H>r vii.  677 

Error  to  exclude  (juestion  on  cross-examination  of  prosecutrix  as 

to  "  whether  this  woa  the  only  time  defendant  was  ever  bad  "...  .vii.  677 

Error  to  exclude  questions  asked  prosecutrix  as  to  whether  wife  of 

defendant  had  not  sought  to  influence  her  to  swear  against  him.  .vii.  677 

— —  Error  to  exclude  questions  or  strike  out  testimony  tending  to  show 
the  motive  of  defendant's  wife  in  attempting  to  influence  prosecutrix 
to  testify  to  certain  facts  against  him vii.  677 

Error  to  exclude  testimony  tending  to  show  extent  of  injury  or 

that  prasecutrix  feigned  lameness vii.  677 

Defendant's  asking  prosecutor  at  preliminary  examination  to  stop 

the  prosecution  as  he  did  not  hurt  the  girl  much  is  not  admitting  the 
commission  of  a, vii.  677 

Note  on  carnal  intercourse  toith  a  woman  obtained  by  means  of 

fraud  a, vii.  584 

Where  insanity  is  relied  upon  oh  a  defense  in  trial  for,  burden  of 

proof  rests  on  defendimt vii.  685 

Note  on  proof  of  prior  attempts  to vii.  585 

Note  defining  *'  carnally  knowinf^  and  abusing  female  child  ".  .vii.  689 

Note  on  assault  with  intent  to,  child  under  age  of  coiment vii.  690 

Note  on  legal  presumption  as  to  physical  capacity  of  boy  under 

fourteen  to  commit vii.  690 

- —  Objections  predicated  on  testimony  of  expert  which  had  been  first 
drawn  out  on  cross-examination  can  not  be  considered viii.  664 

Resistance  and  force  are  only  facts  bearing  on  the  question  of  con- 
sent, and,  where  prosecutrix  is  mentally  weak,  less  evidence  of  want 
of  consent  is  necessary  than  where  female  is  of  sound  mind viii.  669 

— —  Force  essential  to  sustain  conviction  for  assault  with  intent  to, 
defined viii.  677 

——  Husband  constraining  another  to  ravish  his  wife  guilty  of  assault 
with  intent  to  commit, viii.  681 

On  an  indictment  against  a  htisband  for  assault  with  intent  to 

ravish,  it  can  not  be  objected  that  there  was  no  criminal  intend,  where 
he  by  threats  compelled  anotlier  to  ravish  his  wife viii.  681 


AMERICAN  CRIMINAL  REPORTS.  735 

IlAPE-CoH<inupd.  ^.„„ 

P.'QK. 

Note,  one  woman  aiding  a  man  to  commit,  on  another  woman  i« 

^'"^."^r:"' ; vui.  ese 

— ^  Frinoiple  of  rr«  gentae  extended  in  caaes  of,  on  female  cliild. .  ..ix.  449 

SUtements   of  a  fouiftle  cliild  five  years  and  a  half  old  made 

to  her  grandmother  the  same  day  defendant  was  alleged  to  have  com- 
mitted, upon  her  admissible  as  par^  of  the  res  gestae ix.  449 

Note  on  what  conntitiites,  and  evidence  necessary  to  convict. . .  .ix.  446 

—  Life  Imprisonment  for  one  carnally  knowing  a  girl  under  age  of 
const'nt  not  a  cruel  and  unusual  punishment x.    07 

Not  necessary  to  show  that  one  who  had  carnal  knowledge  of  girl 

under  age  of  consent  knew  or  had  good  reason  to  believe  that  she 
was  under  that  age x^    g7 

One  intending  to  commit  fornication,  committing  a,  is  guilty  of 

the  latter x.    67 

See  Note x,    7q 

On  trial  of  a  father  for,  upon  his  dauuhter,  admission  of  evidence 

that  lie  also  committed  a,  upt)n  another  daughter,  is  reversible 
eTor X.  489 

Note  on  evidence,  res  gestae  and  hearsay x.  408 

REASONABLE  DOUBT. 

Duty  of  court  when  charging  a  jury  that  they  must  be  satisfied 
beyond  a,  of  defendant's  guilt  to  exi)lain  what  is  a  reasonable  doubt.i.  502 

An  instruction  that  "  if  the  evidence  is  such  that  a  man  of  pru- 
dence would  act  upon  it  in  his  own  affairs  of  the  greatest  importance, 
then  there  can  not  remain  a,  within  the  meaning  of  the  law,"  is 
erroneous ii.  482 

— —  An  instruction  that,  "  if,  as  reasonable  men,  guided  by  that  pru- 
dence and  reason  which  govern  you  in  the  ordinary  conduct  of  your 
atrairs,  you  have  a  doubt  of  the  defendant's  guilt  you  should  acquit," 
is  error ii.  198 

There  should  not  be  a  conviction  so  long  as  one  or  more  of  the 

jurors  entertain  a,  of  the  defendant's  guilt ii.  603 

— —  1%  one  arising  from  a  candid  and  impartial  investigation  of  all  the 
evidence,  and  such  as  in  the  graver  transactions  of  life  would  cause 
a  reasonable  and  prudent  man  to  hesitate  and  pause. iv.  52,  v.  20,  viii.  619 

- — The  doctrine  of,  is  applicable  to  all  criminal  cases  as  well  where 
the  evidence  is  direct  as  where  it  is  circumstaniial;  proper  instruc- 
tion in  the  latter  case iv.  614 

The  burden  of  proof  rests  upon  the  State  to  prove  beyond  a,  the 

existence  of  all  the  material  elements  necessary  to  commit  the  crime 
of  murder  as  defined  by  the  statute v.  406 

Instruction  as  to,  in  prosecution  for  perjury vi.  556 

Note,  defined vii.  486 

An  instruction  in  a  prosecution  for  assault  with  a  deadly  weaiwn 

that  if  the  jury  entertain  a,  that  defendant  acted  under  a  reasonal>le 
apprehension  of  great  bodily  injury,  they  must  acquit,  is  erroneous 

viii.    68 

—  Doctrine  of,  prevails  in  prosecution  for  receiving  stolen  goods. 

vii.  698 


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INDEX  TO  VOLS.  I  TO  X. 


REASONABLE  DOUBT— Continued.  paoe. 

In  a  prosecution  for  murder  it  in  not  error  to  refuse  to  charge  that 

if  there  was  a,  whether  a  particular  fact.  i.  e. ,  an  intent  to  kill,  existed 
because  of  another  particular  fact,  i.  e.,  intoxication,  the  jury  could 
not  return  a  verdict  in  first  degree ix.  526 

In  prosecution  for  assault  with  intent  to  murder  it  is  error  to 

charge  that  "  a,  is  one  that  excludes  every  reasonable  hypothesis  ex- 
cept that  of  guilt  of  defendant  and  only  when  no  other  supposition 
will  reasonably  account  for  all  the  conditions  of  the  case  can  the  con- 
clusion of  guilt  be  legitimately  adopted," x.    57 

Note  on  doctrine  of,  a»  applicable  to  the  determination  of  an  iaaue^ 

•of  the  sanity  of  cuscuted  in  criminal  cases x.  886 

RECAPTION  OF  STOLEN  PROPERTY  BT  FORCE. 

A  man  has  no  right  to  retake  stolen  property  by  a  breach  of  the 

peace i.    57 

Note  on  resetting  property  wrongfully  taken x.    45 

Note  on,  breaking  premises  to  take  possession  of  property  under 

claim  of  oumership x.  140 

RECEIVING  STOLEN  GOODS. 

Proof  necessary  to  convict iv.  534 

Where  one,  receives  goods  from  a  thief  knowing  them  to  have 

been  stolen  he  is  guilty  of,  although  authorized  so  to  receive  them 

by  the  owner iv.  534 

Criminal  intent  essential  element  of  the  crime  of, iv.  534 

Note  on  evidence  required  to  convict  of, iv.  541 

Trial  for,  must  be  had  in  county  where  oflTense  was  committed. iv.  888 

Sufficiency  of  indictment  for, v.  619 

A  charge  of,  may  be  joined  in  indictment  with  a  charge  for  aid- 
ing in  the  concealment  of  such  goods v.  619 

'—  Failure  of  junk  dealer  to  keep  book  required  by  law  may  be  shown 

in  a  prosecution  for, vii.  598 

One  may  be  convicted  of,  although  he  had  no  actual  knowledge 

goods  were  stolen vii.  593 

Sufficiency  of  indictment  charging  defendant  with  having  pro- 
cured certain  others  to  commit  the  larceny viii.  687 

A  count  for,  may  be  joined  with  a  count  for  larceny viii.  687 

One  knowingly  taking  charge  of  stolen  goods  received  by  his  part- 
ner is  guilty  of, viii.  687 

Where  property  known  to  defendant  to  have  been  stolen  is  placed 

in  his  charge  under  his  directions  and  he  takes  control  of  it  for  his 

own  use  he  is  guilty  of viii.  687 

- —  In  prosecution  for,  evidence  that  accused  paid  a  witness  for  the 

State  to  leave  the  ooimty,  admissible viii.  687 

— —  One  who  obtains  possession  of  the  property  of  another,  knowing 
it  to  have  been  stolen  and  conceals  his  possession  with  intention  of 
requiring  the  owner  to  pay  a  reward  for  its  restoration  may  be  con- 
victed of, ix.  453 

When  stolen  property  is  received  by  accused  in  one  county  and 

he  goes  to  another  county  with  it  and  there  exacts  a  reward  from 


PAGE. 

ihat 

Bted 

ould 

Ax.  528 

r  to 

lex- 

ition 

con- 

..X.    67 

iame 


'  the 
...i.    67 
...X.    45 
inder 
...x.  149 

..iv.  534 
have 
them 
...iv.  534 
. .  .iv.  534 
...iv.  541 
id.iv.  888 

.  .V.  619 

aid- 

.  .V.  619 
hown 

vii.  598 
[ledge 

.vii.  693 

pro- 

.viii.  687 

.viii.  687 

part- 

J.viii.  687 
llaced 

arhis 
j.vlii.  687 
Ir  the 

.viii.  687 
Iwing 
ton  of 
con- 

, .  .Ix.  455 
and 

Ifrom 


AMERICAN  CRIMINAL  REPORTS.  737 

RECEIVING  STOLEN  GOODS-ConKnwcd.  page. 

the  owner  for  its  restoration,  the  venue  may  be  laid  in  the  latter 

county ix.  455 

Instruction  as  to  value  of  stolen  goods  received ix.  460 

Note  on  sufficiency  of  evidence  to  sustain  conviction  of, ix.  467 

RECENT  POSSESSION  OF  STOLEN  PROPERTY. 

Possession  of  property  recently  stolen  makes  out  a  prima  facie 
case  of  guilt,  and  throws  upon  the  defendant  the  burden  of  explain- 
ing that  possession i.  557 

^—  Presumptions  arising  from, vi.  21,  402 

See  Note x.  139 

RECOGNIZANCE.    (Pakol.) 

A  parol  promise  to  appear  before  a  police  magistrate  has  no  legal 
validity  or  binding  force i.  600 

RECORD. 

Must  affirmatively  show  that  an  indictment  was  returned  into 
court i.  604 

Failure  of,  to  show  affirmatively  that  before  sentence  was  pro- 
nounced defendant  was  asked  if  he  had  anything  to  say  why  sentence 
should  not  be  passed  upon  him  works  reversal  of  sentence  and 
remandnient  of  prisoner  to  be  sentenced  anew,  but  does  not  affect 
the  verdict i.  268 

Judgment  reversed  when,  does  not  affirmatively  show  presence 

of  defendant  throughout  tlie  trial  and  when  verdict  was  rendered,  .i.  608 

Although,  shows  that  prior  to  the  former  trial  defendant  waived 

arraignment,  conviction  had  without  plea,  will  be  set  aside ii.  484 

Verdict  will  be  set  aside  on  writ  of  error  when,  does  not  affirma- 
tively show  defendant  was  arraigned  and  pleaded i.  602,  606 

Conviction  reversed  where,  does  not  show  arraignment iii.      9 

Inference  from  the  word  vwotm  appearing  in  the,  is  that  the  jury 

was  properly  sworn iii.  171 

Objection  after  verdict  that,  does  not  show  grand  jury  were  im- 
paneled, charged  and  sworn  comes  too  late iii.    98 

May  he  corrected  in  almence  of  defendant iii.  843 

Absence  of  the  certificate  of  the  foremen  of  the  grand  jury  from 

the  indictment  in  the,  is  not  conclusive  to  show  that  no  certfficate 
existed iii.  218 

One  mention  in,  of  the  prisoner's  presence  is  sufficient  when  trial 

occupies  but  one  day ^*'    ^3 

REMARKS  OF  COUNSEL 

In  a  prosecution  for  alwiuction  prosecutor  referring  to  defendant 
as  *'  this  infamous,  lecherous  scoundrel,"  is  ground  for  reversal. . .  .x.      8 

Objection  to,  inust  be  made  at  the  time  and  ruling  of  the  trial 

court  had  to  be  available  on  appeal »•  427 

REPRIEVE. 

Where  a.  Is  granted  in  a  capital  case  to  a  day  certain,  the  warden 
Bhould  execute  the  sentence  on  such  day,  without  time  of  execution 

being  again  fixed  by  the  court "•  *"♦ 

47 


788 


INDEX  TO  VOLS.  I  TO  X. 


BEPEIETE— Conhnwerf.  page. 

,Note  dMingHishing,  by  Oovcmor,  and  stay  of  death  sentence  by 

Supreme  Court ix.  502 

REPUTATION. 

In  prosecution  for  homicide,  u£  deceased  for  violence  admissible.!.  830 
See  Note 1.  84« 

Evidence  offered  by  defendant  to  sliow  his  good,  must  be  ad- 
mitted  ii.  268 

See  Note x.     19 

Proof  of  good  character  is  evidence  to  be  weighed  by  the  jury  on  the 

question  of  defendant's  guilt,  irrespective  of  the  apparent  conclusive- 
ness or  inconclusiveness  of  the  other  evidence ii.    18 

Failure  of  defendant  to  offer  evidence  of  previous  good  character 

does  not  justify  any  presumption  against  him ii.  460 

Prosecution  can  not  attack,  of  prisoner  unless  he  puts  it  in  issue. ii  S06 

Can  not  be  attacked  by  showing  particular  bad  acts  of  accused. ii.  606 

Oood,  may  be  proved  by  witnesses  who  never  heard  prisoner's  char- 
acter discussed ii.    61 

Accused  haa  the  right  to  prove  his  real  disposition  and  character 

by  those  who  know  what  he  is  from  their  own  personal  observation 

ii.    61 

— —  Where  testimony  of  impeaching  witness  affirmatively  shows  that 
he  has  some  knowledge  of  the,  of  a  witness  it  is  error  for  the  court  to 
reject  his  testimony  as  to  that,  on  the  ground  that  his  knowledge 
of  that,  is  not  sufficient ii.  'd'A2 

Impeaching  witness  before  testifying  to  the,  of  the  witness  he  is 

called  to  impeach,  may  be  cross-examined  as  to  the  extent  and 
sources  of  his  knowledge ii.  832 

Note  on,  of  prosecutrix  in  a  rape  case  as  a  subject  of  inquiry 

vii.  593 

— —  While,  of  prosecutrix  for  chastity  in  rape  case  may  be  attacked 
specific  acts  of  improper  conduct  with  other  men  can  not  be  shown. 

ix.  843 

On  trial  of  a  woman  for  keeping  house  of  ill  fame  State  can  not 

introduce  evidence  as  to  her,  for  chastity  where  no  evidence  for  de- 
fendant is  offered x.  427 

BE8  ADJUDICATA. 

An  adjudication  that  defendant  was  not  guilty  of  an  offense  pun- 
ishable upon  information  filed  before  a  justice  of  the  peace  can  not 
be  pleaded  in  bar  to  an  action  for  maintaining  a  nuisance vi.  148 

RESISTING  OFFICER. 

Where  defendant  was  fleeing  from  arrest,  and  the  officer  with  a 
warrant  for  him  attempted  to  take  his  life  by  shooting  at  him  with  a 
deadly  weapon  merely  for  the  purpose  of  preventing  his  escape,  he 
has  the  right  to  repel  such  an  attack  with  force  (misdemeanor) iii.    H 

In  indictment  for,  it  is  not  necessary  that  the  manner  in  which 

the  officer  act^  should  be  averred iv.  650 

• Failure  to  allege  in  indictment  for,  that  accused  knew  at  the  time 


IS 


61 


61 


PAGE. 

56  by 
..ix.  502 

ble.i.  880 
. . .  i.  848 
e  ad- 
....ii.  268 
..X.     19 
on  the 
usive- 
....ii.    18 
racter 
....ii.  469 
isue.ii  506 
sed.ii.  506 
i  char- 

ii. 

iracter 

•vation 

ii. 

vs  that 

ourt  to 

vNledge 

[ii.  383 

he  is 

and 

,.ii. 

nquiry 

vii. 

tacked 

jhown. 

ix.  843 
an  not 
for  de- 
X.  427 


le  pun- 
an  not 
...vi.  148 

with  a 
with  a 
ape,  he 

,  .iii. 
which 

..iv.  559 
le  time 


832 


593 


11 


AMERICAN  CRIMINAL  REPORTS.  739 

RESISTING  OFFICER-Con<intted.  p^gj, 

that  such  officer  was  one  of  those  whom  it  was  a  statutory  crime  to 

hinder,  may  be  taken  advantage  of  in  arrest  of  judgment iv.  559 

See  Note ., . . . .iv.    87 

On  trial  of  person  accused  of  unlawfully  taking  property  from  an 

officer,  it  is  sufficient  to  show  that  the  process  under  which  the  officer 
claimed  to  hold  the  property  was  regular  on  its  face ix.  563 

Note  on  indictment  and  information  for, ix.  579 

REWARD. 

Statute  authorizing  counties  to  offer,  for  the  detection  or  appre- 
hension of  persons  charged  with  a  felony,  does  not  authorize  the  pay- 
ment of  such,  until  conviction ix.  678 

Note  on  when,  is  payable— plea  of  guilty  not  defeating  recovery  of, 

RIOT.  «•  ''''  ""' 

Where  two  or  more  persons,  acting  together  without  authority  of 
law,  use  or  threaten  either  force  or  violence  accompanied  by  immedi- 
ate power  of  execution  and  thereby  disturb  the  public  peace,  they 
are  guilty  of, iv.  54a 

Testimony  sufficient   to  show  defendants   disturbed  the  public 

peace '. • {y.  543 

Where  accused  took  part  in  a,  incited  it,  and  was  in  a  great  meas- 
ure responsible  therefor  he  was  liable  for  each  and  every  illegal  act 
committed  by  the  mob y  622 

Where  accused  was  an  active  participant  in  and  a  leader  of  a, 

what  was  said  and  done  by  the  mob  or  any  of  its  members  was  proper 
evidence  against  accused  unless  it  was  shown  that  he  left  or  aban- 
doned them  before  the  homicide  charged  was  committed v.  623 

Indictment  or  information  for,  must  show  for  what  purpose  the 

rioters  assembled,  and  it  must  state  that  such  assemblage  was  unlaw- 
ful   ix.  583 

Is  a  compound  offense;  there  must  not  only  be  an  unlawful  act 

done,  but  an  unlawful  assembly  of  more  than  two  persons ix.  582 

Xote  on  what  constitutes,  and  evidence  necessary  to  support  con- 
viction  ix.  586 

ROBBERY. 

Snatching  or  taking  money  from  complainant's  hand,  but  without 
violence  to  his  person  is  not  such  violence  as  constitutes,  and  subse- 
quent violence  or  putting  in  fear  will  not  make  such  previous  taking, 

iii.  896 

• An  indictment  for  conspiracy  to  commit,  must  charge  that  it  was 

to  be  done  "  by  violence  "  or  "  by  putting  in  fear  " i.  105 

Where  a  thief  slipped  his  hand  into  the  pocket  of  a  lady  who  felt 

his  hand  and  turning  caught  him  by  the  coat  which  he  left  with  her 
in  making  his  escape,  the  crime  was  larceny  from  the  person  and  not, 

iv.  561 

A  party  can  not  be  guilty  of,  and  of  having  received  the  same  goods 

obtained  by  the,  knowing  them  to  have  been  so  obtained,  where  there 
is  but  a  single  transaction  involved iv.  566 


;M..? 


740 


INDEX  TO  VOLS.  I  TO  X. 


ROBBERY— Continued.  page. 

Violence  essential  to,  must  be  concomitant  with  the  taking  from 

the  person  of  another v.  625 

Indictment  for  assault  with  intent  to  commit,  will  support  convic- 
tion for  assault  and  battery v.  625 

The  record  of  conviction  for,  must  show  defendant  was  arraigned 

on  the  indictment v.  625 

Sufficiency  of  indictment  for,  under  Sec.  211,  Penal  Code,  Cali- 
fornia  vii.  600 

What  suiLcient  taking  to  constitute, viii.  692 

Sufficiency  of  description  of  property  taken  in  indictment  for, .  .ix.  504 

In,  value  of  property  taken  immaterial ix.  504 

Note  on  what  constitutes,  and  requisites  of  pleading  and  proof. 

viii.  6ttfl,  ix.  31.S,  510,  594,  603 

To  constitute,  there  must  be  force  or  intimidation,  asportation 

without  the  consent  of  the  owner,  and  the  intent  to  steal ix.  587 

To  constitute,  the  taking  need  not  necessarily  be  directly  from 

one's  person ix.  587 

Substance  of  conversation  had  between  prosecuting  witness  and 

defendant  in  the  presence  of  a  third  person  admissible  to  enable  such 
third  person  to  identify  defendant ix.  596 

State  may  show  why  a  person  who  was  present  at  a,  had  gone  away, 

as  otherwise  he  would  have  been  called  as  a  witness ix.  596 

Where  defendant  on  trial  for,  testifies,  in  accounting  for  his  time 

on  the  night  of  the,  that  he  went  to  a  certain  part  of  the  town,  he 
may  be  cross-examined  as  to  what  he  and  his  companion  were  doing 
there ix.  596 

On  prosecution  for,  fact  that  property  alleged  to  have  been  stolen 

did  not  in  its  entirety  belong  to  the  person  named  m  the  indictment 
as  owner,  is  not  such  variance  as  vitiates  verdict  of  guilty ix.  596 

Sufficiency  of  indictment  for  highway    ix.  810 

Note  on  distinction  between,  and  larceh,_   'rom  the  person ix.  313 

Note  on  when  the  dispossessing  of  the  otoner  of  articles  not  attached 

to  his  person  but  under  his  immediate  charge  and  control  constitutes, 

viii.  696,  ix.  510 

SEARCH  WARRANT. 

Describing  the  premises  to  be  searched  as  "  a  certain  building,  the 
cellar  under  the  same,  and  the  out-buildings  within  tlie  curtilage  there- 
of, situate,"  etc.,  does  not  authorize  the  search  of  another  building 
on  an  adjoining  lot,  separated  by  a  fence  but  connected  by  a  covered 
passageway v.  627 

SEDUCTION. 

To  constitute  the  crime  of,  the  woman  must,  relying  upon  some 
sufficient  promise  or  inducement,  be  drawn  aside  from  the  path  of 
virtue  she  was  honestly  pursuing  at  the  time  the  offense  charged  was 

committ«d i.  660 

Note  on  what  constitutes, i,  667,  viii  706 

Proper  on  cross-examination  to  ask  prosecutrix  whether,  prior  to 

the  alleged,  she  had  had  illicit  connection  with  another i,  660 


the 

lere- 

ling 

jred 

.  .V. 

627 

ome 

h  of 

was 

...i. 

660 

viii 

706 

r  to 

...i. 

660 

AMERICAN  CRIMINAL  REPORTS.  741 

SEDUCTION-Conhnucd.  ^j^^^ 

Contra ..    ^^^ 

In  proaecrtion  for.  it  is  competent  for  defense  to  give  evidence  to 

show  a  pla.)  on  the  part  of  the  prosecutrix  and  her  parents  to  entrap 

respondent  into  marriage i   660 

Testmiony  of  medical  experts  that  acts  of  sexual  intercoui-se  which 

have  been  testified  to  are  higlily  improbable,  if  not  impossible,  proper 

On  trial  of  an  information  for,  containing  three  counts  covering 

three  distinct  transactions,  prosecutor  will  not  be  allowed  to  go  to  the 
jury  on  more  than  one  act j   q^q 

Evidence  of  illicit  intarcourse  between  prosecutrix  and  defendant 

subsequent  to  the  alleged,  irrelevant  and  inadmissible i.  660 

Statute  against,  extends  to  all  females  under  age  prescribed  whose 

reputation  for  chastity  is  good  whether  that  reputation  is  deserved 
or  not ii.  592 

A  communication  made  by  the  prosecutrix  to  her  attorney  in  a 

consultation  with  regard  to  a  bastardy  proceeding,  which  she  had 
instituted  is  privileged ii_  593 

Sufficiency  of  evidence  to  sustain  a  conviction  of, ii.  594 

lu  action  for,  of  female  thirteen  years  old,  omission  to  prove  she 

wa£  unmarried  unimportant ii.    75 

Evidence  of  conduct  and  appearance  of  parties  on  the  day  follow- 
ing the  alleged,  is  relevant ii.    75 

Where  prosecutrix  in,  case  has  testified  that  defendant  told  her 

that  certain  other  girls  allowed  such  liberties,  it  was  proper  for  State 
to  ask  her  their  names .- ii,    75 

Defendant's  character  for  virtue,  but  not  his  general  moral  char- 
acter, may  be  shown iii.  405 

Burden  of  overcoming  presumption  of  prosecutrix'  chastity  is  on 

defendant iii.  405 

To  make  out  a  case  of,  the  promise  need  not  always  be  a  valid 

binding  contract  on  which  promisee  could  maintain  an  action iii.  899 

•^^  A  conviction  of,  is  not  error  because  the  promise  of  marriage  by 
an  unmarried  man  was  made  in  consideration  of  consent  to  sexual 
ir.tercourse   iii.  899 

Evidence  ot  a  long  courtship  is  competent  though  not  conclusive  as 

corroborative  of  evidence  of  prosecutrix  as  to  the, iii.  405 

Evidence  of  matters  subsequent,  as  well  as  prior,  to  the  alleged, 

proper iii.  405 

Evidence  of  intercourse  a  day  subsequent  to  that  alleged  warrants 

verdict  of  guilty iii-  405 

Questions  as  to  the  chastity  of  prosecutrix  must  relate  to  period 

prior  to  the  alleged, iii.  415 

Evidence  of  offer  by  prosecutrix  to  compromise,  case  is  incom- 

pettnt iii-  ^15 

p  ufficiency  of  indictment  for, iii.  899,  405 

.    —  Time  is  not  a  material  ingredient  of  the  offense  of    iii.  415 

Evidence  of  social  attentions  on  the  part  of  defendant  to  prose- 
cutrix is  not  sufficient  to  corroborate  her  testimony  to  the  effect  that 


742 


INDEX  TO  VOLS.  I  TO  X. 


SEDUCTION— Conhnwed.  page. 
a  proraiae  of  marriage  was  made  to  her  and  will  not  warrant  a  ver- 
dict of  guilty iv.  662 

Contrition  of  defendant  is  not  evidence  from  which  jury  could 

safely  find  a  previous  promise  to  marry iv.  603 

Failure  of  prosecution  to  call  the  father  of  prosecutrix  was  a  cir- 
cumstance which  would  have  justified  an  inference  unfavorable  to 
the  prosecution iv.  503 

Testimony  showing  that  defendant  said  to  a  third  person  :  "  I 

would  give  $200  to  settle  it,  and  no  more;  I  am  not  guilty  of  the 
crime  " — was  not  evidence  of  a  promise  of  marriage iv.  503 

Where  evidence  does  not  warrant  a  conviction  for,  under  pronjise 

of  marriage,  a  conviction  for  fornication  may  be  sustained  under 
same  indictment iv.  603 

Sufficiency  of  information  for,  (Kansas) vii.  004 

Particular  acts  of  unchastity  or  specific  acts  of  illicit  intercouree 

by  prosecutrix  with  other  persons,  can  not  be  shown vii.  004 

When  one  lives  within  five  miles  of  home  of  prosetmtrix  and  is 

generally  acquainted  in  that  neighborhood,  and  knows  the  general 
reputation  of  prosecutrix  in  such  neighborhood  for  chastity,  but  does 
not  know  her  general  reputation  for  chastity  in  her  particular  neigli- 
borhood,  he  is  a  conjpetent  witness  as  to  her  general  reputation  for 
chastity  in   his  neighborhood vii.  004 

A  woman's  reputation  for  chastity  is  wliat  the  people  of  her  ac- 
quaintance generally  say  of  her  in  this  regard. . « vii.  004 

Note  on  sufficiency  of  evidence  to  establiah, vii.  613,  viii.  706 

Error  to  instruct  that  as  to  promise  of  marriage  there  must  be  evi- 
dence to  corroborate  that  of  prosecutrix,  which  may  be  supplied  from 
the  circumstances  of  the  case viii.  608 

Error  to  instruct  jury  that  where  prosecutrix  allowed  defendant  to 

have  sexual  intercourse  with  her  on  faith  of  his  promise  to  marry  her 
he  must  be  convicted viii.  098 

Where  evidence  tends  to  show  prosecutrix  submitted  to  defend- 
ant without  promise  of  marriage  he  is  entitled  to  an  instruction  that  if 
jury  l)elieve  such  evidence  they  must  acquit viii.  698 

Where  evidence  is  conflicting  and  prosecution  is  not  commenced 

until  more  than  a  year  after  birth  of  child,  during  which  time  defend- 
ant married,  it  is  error  to  refuse  to  allow  prosecutrix  to  be  asked  on 
cross-examination,  if  idea  of  prosecuting  him  did  not  first  present 
itself  to  her  after  his  marriage viii.  698 

An  indictment  for,  under  promise  of  marriage,  not  alleging  that 

the  promise  was  made  to  prosecutrix  is  sufficient  after  verdict ix.  606 

Chastity  of  woman  at  time  of,  essential  ix.  606 

Indictment  for,  under  promise  of  marriage  need  not  allege  that 

defendant  was  unmarried,  although,  if  married,  and  the  woman 
knew  it,  no  conviction  could  be  had ix.  600 

Not  absolutely  essential  indictment  for,  should  allege  that  prose- 

trix  was  single ix.  606 

Facts  not  conclusions  competent  to  prove  character  of  prosecu- 
trix  ix.  614 


PAQE. 


698 


698 


AMERICAN  CRIMINAL  REPORTS.  743 

SEDUCTION-ConhntteA  p^gj, 

No  compromise  between  the  parties  bare  a  criminal  prosecution 

for  a,  under  promise  of  marriage ix.  614 

Instruction  that  if  the  jury  believed  from  the  evidence  beyond  a 

reasonable  doubt  that  the  prosecutrix  was  an  unmarried  female  of 
previous  chaste  cliaructer,  and  she  was  seduced  by  defendant  under 
promise  of  marriage,  they  should  find  him  guilty,  proper ix.  614 

Proper  instruction  as  to  extent  and  effect  of  presumption  of  de- 
fendant's innocence j^.  814 

Chastity  of  prosecutrix  presumed,  and  burden  on  accused  to  prove 

the  contrary ij^   gj^ 

Burden  of  proof  on  State  to  prove  previous  chaste  character  of 

prosecutrix  (Minn.) ." ix,  617 

Testimony  of  prosecutrix  may  be  corroborated  by  circumstantial 

evidence ix.  817 

See  Note ix.  622 

Evidence  of  general  reputation  of  prosecutrix  for  chastity  admis- 
sible  ix.  617 

Note  on  what  constitutes, ix.  621 

SELF-DEFENSE. 

One  who  seeks  and  brings  on  a  difficulty  can  not  shield  himself 
under  the  plea  of i.  251,  ix.  73 

Person  violently  assaulted,  being  in  a  place  where  he  has  a  right 

to  be,  may,  without  retreating,  repel  force  by  force,  and  if  in  the  rea- 
sonable exercise  of  his  right,  of,  his  assailant  is  killed,  it  is  justifiable 
homicide ii.  318,  vii.  462 

A  pei"8on  defending  his  companions'  lives  from  assault  stands  in 

the  same  position  as  though  deieiuling  his  own iii.  843 

When  a  person's  life  is  in  danger,  or  he  is  in  danger  of  some  great 

harm,  or  when  from  the  acts  of  an  assailant  he  believes  that  he  is  in 
danger  of  losing  his  life  or  of  receiving  great  bodily  harm,  he  may 
exercise  the  right  of,  to  any  extent  which  is  reasonably  necessary  for 
his  own  safety  and  protection iii.    11 

The  belief  necessary  to  justify  one  in  taking  life  of  assailant v.  425 

Note  fully  discussing  doctrine  of, v.  427 

j^fote  on,  and  competency  and  sufflciency  of  evidence vii.  467 

Where  it  is  submitted  to  the  jury  to  say,  what  were  the  facts  and 

circumstances  of  the  kilhng,  and  whether  the  act  of  the  accused  was 
reasonable  and  without  malice,  it  is  proper  to  instruct  the  jury  that 
under  such  circumstances  the  killing  would  be  an  unreasonable  exer- 
cise of  the  right  of, viii.  545 

One  wrongfully  assailed  in  a  public  place  is  not  obliged  to  retreat 

from  his  assailant  in  order  to  avoid  a  conflict ix.    78 

A.  person  who  has  an  angry  altercation  with  another  person,  such 

as  to  lead  him  to  believe  that  he  may  require  the  means  of  self- 
defense  in  case  of  another  encounter,  may  be  justified  in  arming 
himself  for,  and  if  on  meeting  his  adversary  on  a  subsequent  occa- 
sion, he  kills  him,  but  not  in  necessary,  his  crime  may  be  that  of 
manslaughter "'    209 

Note  on  duty  to  retreat ix.  .337 


744 


INDEX  TO  VOI^.  I  TO  X. 


SELF-DEFENSE— Con^t'nHed.  page. 

In  oases  of  mutual  combat  botli  parties  are  the  agsyressors  and  if 

one  is  killed  it  will  be  [nanaltiu;(liter  at  least,  unless  the  survivor  can 
prove  that  before  the  mortal  stroke  was  given  he  had  refused  any  fur- 
ther combat  and  retreated  as  far  as  he  could  with  safety ix.  032 

Note  on  plea  of,  renting  upon  the  idzit  of  a  legal  necessity ix.  649 

Note  on  defending  others ix.  650 

Note  on ix.  887.  x.  60,  479 

Noteonbelief  necessary  to  justify  takinglife  of  assailant. ix.  8U7,  x.  478 

What  is  or  what  is  not,  an  overt  demonstration  of  violence  suffi- 
cient to  justify  a  resistance  which  results  in  death  of  party  assailant 

is  a  question  for  the  jury. x.  482 

Note  on  tiie  duty  of  person  assailed  to  avert  necessity  of  taking 

assailanVs  life ix.  649 

SENTENCE. 

Unless  otherwise  provided  by  statute  every,  must  begin  to  run 
from  its  date,  and  its  running  can  not  be  postponed  until  tlie  termi- 
nation of  a  former  sentence i.  54iS 

Note  on  power  of  court  toimpose,  of  impristmment  to  begin  on  the 

expiration  of  a  prior  term  of  imprisonment i.  648 

Where,  has  been  suspended  until  the  ncx  t  term  which  passes  with- 
out any  further  8te|)s  being  taken,  it  is  not  rx)mpetent  for  a  judge  who 
did  not  try  the  cause  to  impose, i.  652 

— ^  Where  a  prisoner,  confined  under  an  illegal,  is  brought  before  the 
court  on  habeas  corpus  he  must  be  discharged,  the  court  having  no 
power  to  correct  the,  or  to  remand  prisoner  to  trial  court  to  be  sen- 
tenced afresh i.  654 

Note  on  one  under,  of  imprisonment  on  a  conviction  of  crime 

obtaining  release  on  habeas  corpus i.  557 

Power  to  punish  by  fine  or  imprisonment  does  not  include  power 

to  imprison  in  default  of  payment  of  a  fine i.  559 

What,  may  be  lawfully  passed  in  any  case  can  only  be  determined 

by  the  Appellate  Court  after  judgment  has  been  pronounced  in  the 
trial  court ii.  1 17 

Without  special  statutory  authority  court  has  no  power  to  suspend, 

indefinitely ii.  475 

Extreme  penalty  of  the  law  only  to  be  inflicted  in  the  most  aggra- 
vated cases ii.  486 

See  Note ii.  487 

Where  trial  judge  imposes  a,  of  excessive  severity  judgment  will 

be  reversed  and  cause  remanded  for  a  proper ii.  487 

A,  of  imprisonment  in  jail  for  five  yeara  and  at  expiration  thereof 

to  give  bond  in  the  sum  of  $500  to  keep  the  peace  for  five  years,  is 
excessive  and  erroneous  (Asssault  and  Battery) ii.  487 

Where  the  jury  must  fix  the  punishment  evidence  that  defendant 

has  already  been  imprisoned  on  the  same  charge  for  a  long  time 
should  be  considered  by  the  jury  in  mitigation  of  his  punishment. ii.    18 

There  can  be  but  one  judgment  upon  an  indictment,  and  conse- 

qu3ntly  a  judgment  and,  upon  one  count  conclusively  disposes  of  the 


1 


un 
ni- 

.i.  645 
the 

A.  648 
th- 
rho 

.i.  662 
the 
no 
tm- 

i.  654 
me 

i.  667 
k-er 

.i.  659 
led 

he 

ii.  117 

d, 

ii.  475 

a- 

ii.  486 

ii.  487 

ill 

ii.  487 
f 
is 

ii.  487 

nt 
e 
i.    18 

18 


AMERICAN  CRIMINAL  REPORTS.  745 

SENTENCE— Con«»wed.  p^^qb. 

whole  indictment,  operating  as  an  acquittal  upon  or  discontinuance 

of  the  other  counts ii.  490 

Where  a  cumulative,  of  imprisonment  is  passed  on  a  conviction 

on  several  counts,  tlie  judgment  should  simply  direct  that  each  suc- 
cessive term  should  begin  on  the  expiration  of  the  one  preceding,  .ii.  806 
See  Note ii.    401 

—  On  reversing  judgment  imposing  illegal.  Appellate  Court  has  no 
power  to  impose  the  proper,  or  to  remand  the  caso  to  the  court  of 
original  jurisdiction  for  that  purpose ii.  408 

Error  to  impose  separate,  upon  two  different  counts  where  there 

are  three  counts  in  an  indictment,  all  counting  upon  the  same  trans- 
action  iii.    80 

Where  no  part  of  the,  has  been  executed  court  has  power  to  revise 

and  increase  its  judgment  at  the  same  term iii.  876 

Presumptions  in  such  case,  in  the  absence  of  anything  to  the  con- 
trary t)iat  sound  judicial  reasons  influenced  the  action  of  the  court .  iii.  876 

Where  error  affects,  only  prisoner  not  entitled  to  a  new  trial,  but 

must  be  resentenced  after  being  asked  if  he  has  anything  to  say 

why,  etc iv.  666 

HeeNote iv.  201 

— —  When  prisoner  was  adjudged  to  be  imprisoned  for  three  several 
terms  without  any  specification  as  to  the  time  of  beginning  or  ending 
of  the  liist  two  terms  he  could  not  be  imprisoned  for  a  period  exceed- 
ing that  of  a  single, iv.  568 

See  Note iv.  570 

Process  of  commitment  can  not  enlarge  record iv.  568 

To  hard  labor  for  costs v.  105 

Order  of  court  fixing  time  of,  after  conviction  of  felony  is  not  an 

appealable  order v.  503 

Correction  of,  on  appeal,  in  a  case  of  misdemeanor. vii.    58 

Where  defendant  on  trial  for  burglary  pleaded  guilty  to  the  charge 

of  "  prior  convictions,"  and  the  court  did  not  instruct  the  jury  as  to 
same,  nor  did  it  appear  from  the  record  that  any  reference  was  made 
to  them  during  the  trial,  it  must  be  presumed  that  the  clerk  had 
obeyed  the  law  and  omitted  to  read  the  prior  convictions  to  the  jury, 
and  that  the  court  in  view  of  their  v  ohdrawal  had  disregarded  them 
in  considering  the, '^"'  ^^^ 

An  escaped   convict  sentenced  for  the  commission  o^   another 

crime  may,  at  the  expu-ation  of  the  imprisonment  for  the  latter,  be 
held  to  serve  out  the  former, |^'  "''^l 

Note  on  term  of  imprisonment  for  non-payment  of  fine ix.  718 

iVo<c  on  execution  when  captured  of  person  under  death,  who 

esciipes  until  after  time  fixed  for  execution «•  '19 

Where  a  person  has  been  convicted  at  same  term  of  court  of  sev- 
eral distinct  offenses,  whether  charged  in  separate  informations  or  in 
separate  counts  of  the  same  information,  a  separate,  may  be  imposed 

.'         ,     i»      „  IX.  651 

for  each  offense •••• 

If  same  offense  is  charged  in  different  counts,  and  there  is  a  convic- 
tion on  each  count  but  a  single,  should  be  pronounced  upon  all  the 
counts  for  the  one  entire  offense '^' 


746 


INDEX  TO  VOLS.  I  TO  X. 


SENTENCE- Con  fj'nucd.  page. 

Power  of  court  to  suspend,  an  incident  to  a  writ  of  error  or  some 

other  legal  ground ix.  702 

Common  law  right  of  criminal  courts  to  suspend,  not  abrogated 

by  Sec.  12,  New  York  Penal  Code Ix.  489 

— —  Power  of  Criminal  Courts  to  suspend,  does  not  conflict  with  right 
of  (iovernor  to  grant  reprieves  and  pardcms  (New  York,) ix.  489 

Taking  appeal  from  an  order  of  a  federal  flistrict  judge  to  federal 

Supreme  Court  does  not  act  as  a  supersedeas  so  as  to  prevent,  until 
determination  of  appeal,  execution  of  the  death,  imposed  by  a  State 
court ix.  494 

Where  a  reprieve  is  granted  in  capital  case  the,  should  be  execu- 
ted on  the  day  the  reprieve  expires ix.  494 

Note  distinguishing  reprieve  by  Oovernor  and  stay  of  death,  by 

Supreme  Court ix.  602 

Interrogating  convict  if  he  has  anything  to  say  why,  should  not 

be  pronounced  not  essential ix.  S26 

Note  onpow^r  of  court  to  suspend  or  modify, x.    90 

SILENCE  AS  AN  ADMISSION.  ' 

Silence  under  accusations  is  not  always  to  be  considered  as  an 

admission  of  their  truth i.    29 

See  Note i.    81 

SLANDER. 

Is  a  felony v.  681 

On  a  prosecution  for,  where  the  language  used  by  defendant  is  a 

slang  term  and  ambiguous,  testimony  explaining  what  the  witnoHs 
understood  by  it,  is  admissible ix.  6S6 

SOLICITING  COMMISSION  OF  CRIME. 

Soliciting  a  third  person  to  set  Are  to  a  building i.    81 

A  bare  solicitation  to  commit  incest  is  not  indictable  (Illinois),  .ii.  839 

Note  on  solicitations  to  commit  perjury iii.  295 

Solicitation  to  commit  edultery  is  not  an  attempt  to  commit  the 

crime ix.  661 

9^  General  Note ix.  668 

STATE  BOARD  OF  HEALTH. 

JVofe  on  validity  of  regidation  of,  prohibiting  maintenance  of  pig 
pens  within  100  feet  of  any  dwelling  or  uxll  or  privy x.  160 

STATUTES. 

Construction  of,  against  abortion i.    29 

Construction  of,  against  assault  and  battery i.    65 

Construction  of,  against  arson i.    81 

Against  embezzlement  from  "  any  corporate  body  in  this  State  " 

does  not  extend  to  or  include  foreign  corporations  doing  business  in 

the  State  without  authority  of  law i.  168 

^— Which  give  a  municipal  board  power  to  "regulate"  licensed 

taverns  construed i.  457 

—  Under,  prohibiting  keeping  "open  store"  on  Sunday,  and  indict- 


51 


AMEKICAN  CRIMINAL  REPORTS.  747 

STATUTES-ConhnHcd.  „,„„ 

PAQE. 

ment  charging  keeping  "  open  shop"  on  Sunday  does  not  charge  any 
*'"®"**' ii.  470 

— -  While  it  is  generally  true  that  the  adoption  by  the  legislature  of 
the,  of  another  State  is  also  an  adoption  of  tiie  construction  previously 
given  to  th'%  by  the  courts  of  that  Stat-,  vet  such  construction  will 
not  be  presumed  to  obtain  where  it  is  inconsistent  with  the  spirit  and 
policy  of  the  laws  of  the  adopting  State j.  471 

Where  there  is  no  ambiguity  in  the  language  of,  courts  are  iiot 

warranted  in  either  limiting  or  exti  rding  the  langunp;,.  of  the  Act  by 
construction i.  460 

Authorizing  registered  pharmacists  to  kern  spirituous  liquors  for 

com|H)unding  medicines  construed iv.  209 

Unless,  by  their  language  expressly  or  by  necessary  impiicatlon 

demand  such  construction,  tlu'y  will  not  be  construed  as  repealing 
previous,  or  as  being  retrospective vi.  846 

Note  on  repeal  of,  by  implication vi.  208 

Note  on  construction  of,  where  particular  words  are  followed  by 

those  of  a  general  character vii.  408 

Nevada,  to  define  and  punish  embezzlement  (St.  1887,  p.  81),  con- 
strued  ix.  248 

On  an  issue  aa  to  whether,  were  enacted  in  conformity  with  the 

constitutional  requirements  as  to  procedure,  resort  may  be  had  to  the 
journals  of  the  two  houses  of  the  legislature ix.  284 

Note  OH  admissibility  of  evidence  as  to  intoxication  of  defendant 

on  trial  under,  establishing  degrees  of  murder  and  providing  that 
wilful,  deliberate  and  premeditated  killing  shall  be  murder  in  the  first 
degree, ix.  536 

Chinese  Exclusion  Act  construed ix.  838 

Note  on  validity  of,  for  protection  of  depositors x.    88 

Note  on  nUe  of  strict  construction  of  penal, x.    88 

Criniinal,  containing  separate  and  distinct  denunciations  of  two 

separate  and  distinct  classes  of  offenders  in  the  alternative,  in  one 
continuous  and  unbroken  sentence  construed x.    07 

Note  on  requirements  of  State,  as  to  requisitions x.  310 

Constitutionality  of  State,  prohibiting  druggists  from  retailing 

spirituous  liquors  in  quantities  less  than  a  quart x.  340 

Note  on  validity  of  local  option, x.  347 

Requiring  payment  by  defendant  of  costs  on  appeal  from  a  sen- 
tence of  a  justice  of  the  peace,  constitutional x.  808 

Note  on  dispensing  with  certain  essentials  of  offense  in  indict- 
ment  X.  417 

Note  on  exceptions  in,  and  when  a  negative  averment  in  regard 

tliereto  not  necessat-y  in  the  information x.  455 

STENOGRAPHER. 

Admissibility  of  notes  of,  to  contradict  the  respondent  in  arson  by 
proving  that  he  had  testified  differently  on  the  former  trial  under 

same  indictment  depends  on  their  relevancy iv.    88 

When,  reads  his  notes  of  the  testimony  o?  a  former  trial  as  evi- 
dence, he  must  be  sworn  like  any  other  w^itness iv.    38 


748 


INDEX  TO  VOLS.  I  TO  X. 


SUBORNATION  OF  PERJCRT.  page. 

To  convict  one  of,  it  is  necessary  to  show  that  perjury  has  been 

committed iii.  293 

Note  on  effect  upon  one  charged  with,  of  acquittal  of  one  cluxrgcd 

imthperjwy iii.  295 

SUNDAY. 

The  necessity  which  excuses  and  justifies  common  labor  on, 
need  not  be  a  physical  or  absolute  necessity ii.  596 

A  crop  which  would  be  lost  to  owner  by  spoiling  before  he  could 

get  it  to  market  may  be  gathered  on, . . . . " ii.  506 

Indictment  charging  defendant  with  keeping  "open  shop"  on, 

does  not  charge  any  offense  under  a  statute  prohibiting  keeping 
"  open  store  "on ii.  470 

Courts  take  judicial  notice  of  the  day  of  the  week  a  certain  day  of 

the  month  came  on iv.  570 

An  indictment  charging  Sabbath  breaking  must  show  that  the 

offense  was  committed  on  some,  though  the  particular,  is  not  import- 
ant  iv.  570 

Neither  defendant  nor  his  counsel,  in  the  absence  of  notice,  are 

bound  to  be  in  attendance  upon  the  court  on,  to  receive  verdict  of 
jury V.  599 

To  commit  the  offense  of  Sabbath  breaking  by  keeping  a  store  door 

open  on,  it  is  not  necessary  to  keep  it  so  opened  as  to  induce  custo- 
mers to  enter  and  trade;  it  is  sufficient  if  the  door  is  partiaily  open  or 
intentionally  left  unlocked,  so  that  any  pei-son  may  enter  as  readily 
as  if  left  open;  or  if  it  is  opened  to  the  knocking  of  a  stranger,  and 
he  admitted  or  Invited  in v.  629 

— —  Any  person  of  or  over  14  years  of  age  who  shall  on,  engage  in 
sporting,  etc.,  shali  be  lined  or  imprisoned  (Nebraska) ix.  689 

Playing  baseball  on,  comes  within  statute  prohibiting  "sporting" 

•  on, ix.  689 

Note  on  innocent  amuaementa  on,  not  under  the  ban  of  outlawry. 

ix.  700 

SURPRISE. 

Where  the  testimony  of  the  principal  witness  for  the  prosetrution 
on  the  trial  varies  materially  from  that  given  by  her  before  the  com- 
mitting justice,  who  was  unexpectedly  absent  from  the  trial,  the 
prisoner  is  entitled  to  anew  trial,  on  the  ground  of i.  655 

SWINDLING. 

Representations  by  a  party  applying  for  credit  that  he  was  per- 
fectly solvent,  and  responsible  for  his  debts,  and  was  good  for  obliga- 
dons,  are  representations  of  his  respectability  and  wealtii  and,  if 
false,  are  within  the  statute  against,  (Ga.) ix.  705 

Where  goods  are  obtained  by  false  representations  connected  with 

true  ones,  if  the  false  are  separable  from  the  true,  and  are  material 
and  had  a  material  influence  in  effecting  the  fraud,  they  alone  may 
be  alleged  in  the  indictment  for, ix.  705 

That  one  accused  of,  had  unlimited  credit  with  another  house  was 

not  relevant  upon  the  question  of  whether  he  had  misrepresented  his 
solvency  to  the  prosecutor ix.  705 


?^- 


en 

ii.  292 

cd 

ii.  295 

n, 

ii.  5G6 

lid 

ii.  596 

n, 

ig 

ii.  470 

of 

iv.  570 

he 

rt- 

iv.  570 

ire 

of 

V.  599 

>or 

to- 

or 

iiy 

nd 

V.  629 

in 

X.  689 

J" 

IX.  689 

-y- 

X.  700 

on 

n- 

lie 

.i.  655 

AMERICAN  CRIMINAL  REPORTS.  749 

SWINDLINO^Conhnwed.  „.„„ 

Promissory  notes  of  accused  executed  after  makinR  the  misrepre- 

Bentations  in  renewal  of  debts  existing  before,  are  admissible  in  evi- 
dence  to  show  the  amount  of  his  liabilities  at  the  time  he  represented 

himself  solvent, .^^   -q. 

Note  on  what  constitutes, \'\ ,,,[[[    \x   710 

And  cheating  may  be  committed  by  false  representation  of  a  past 

fact  though  a  promise  be  also  a  part  of  the  inducement ix,  158 

Note  on  indictment  for, j^^'  j^ 

TEACHER  AND  PUPIL. 

Note  on  punishment  which  a  teacher  may  administer  to  a  pupil. 

TENOR.  ""•    *® 

The  word,  binds  the  pleader  to  the  strictest  accuracy  (Forgery)..!.  228 

THEFT. 

Where  a  bank  by  mistake  paid  defendant  more  than  his  check 
called  for,  and  he  converted  the  excess  to  his  own  use,  a  conviction 
for,  can  not  be  had  under  a  statute  declaring  that  any  person  having 
possession  of  personal  property  of  another  under  a  contract  of  bail- 
ment, who  shall  without  consent  of  the  owner  fraudulently  convert 
such  property  to  his  own  use  shall  be  guilty  of ix.  784 

THREATS. 

In  a  trial  for  homicide,  where  the  question  is  as  to  what  was  de- 
ceased's  attitude  at  the  time  of  the  fatal  encounter,  recent,  may  be- 
come relevant  to  show  that  this  attitude  was  one  hostile  to  the  defend- 
ant even  though  such,  were  not  communicated  to  defendant iv.  494 

— —  Evidence  of  uncommunicated,  is  not  relevant  to  show  the  quo 
animo  of  the  defendant,  but  it  may  be  relevant  to  show  that  at  the 
time  of  the  meeting  the  deceased  was  seeking  defendant's  life. . .  .iv.  494 

Conditional,  made  by  accused  are  sometimes  admissible iv.  892 

Note  on  admissilrility  of  uncommunicated iv.  895,  vi.  534 

On  a  trial  for  arson  defendant's,  or  declarations  in  the  nature  of, 

before  the  commission  of  the  offense  charged  are  admissible  against 

him V.  43,  vii.  202 

As  a  general   rule,  by  the  defendant  to  kill  some  other  person 

than  the  deceased  is  not  admissible  as  evidence  against  him;  but  in  a 
case  of  mistaken  identity,  evidence  showing,  made  by  defendant 
against  the  person  for  whom  deceased  is  supposed  to  have  been  mis- 
taken is  relevant  and  admissible — vi.  525 

Proper  instruction  upon  such  evidence vi.  525 

In  such  case,  the  fact  of  mistaken  identity  being  established  proof 

of,  madeby  defendant  towards  the  person  for  whom  deceased  was 
mistaken  subsequent  to  the  homicide  is  admissible  against  him  in  con- 
nection with  the  precedent ■ yi.  525 

While,  a,  .inst  the  deceased  are  admissible  in  evidence  in  a  trial 

for  murder,  to  show  malice,  against  another  person  are  only  admitted 
under  circumstances  which  show  some  connection  with  the  injury 

inflicted  on  deceased vi.  508 

,       jia  showing  previous  intention  to  fight vii.  462 


760 


INDEX  TO  VOLS.  I  TO  X 


TWKEATS— Continued.  page. 

Note  on  admiimbility  of  previous,  by  husband  on  trial  for  uxori- 
cide  vii.  468 

On  trial  for  arson  evidence  that  a  person  other  than  the  accused 

had  also  made,  to  burn  said  building  is  inadmissible  as  being  irrel- 
evant, and  as  only  hearsay ix.    62 

Tlie  expression   "menaces"  as   used  in  a  statute  includes,  of 

danger  to  a  i)erson  by  the  making  of  accusations  of  misconduct 
against  him,  altliough  the  accusations  are  not  of  criminal  but  of 
immoral  conduct :  x.  404 

TIME  AND  PLACE. 

Are  a  material  inquiry  in  all  criminal  trials,  whether  or  not  an  alibi 

is  set  up . .  ix.  199 

State  must  prove  that  the  offense  took  place  within  tlie  time 

charged  in  the  indictment,  but  is  not  bound  by  the  date  given  by^ts 
own  witnesses ix.  199 

TRESPASS. 

A  person  who  pulls  down  and  destroys  a  partition  fence  between 
the  lots  of  himself  and  the  prosecuting  witness  is  guilty  of,  but  not 
where  he  simply  knocks  a  Iward  off  of  such  fence iv.  571 

One  is  not  justihed  in  using  force  to  expel  another  who  commits  a 
mere,  on  his  land x.    88 

TREATY. 

Trial  for  crime  not  enumerated  in, ix.  808 

See  Note ix.  809 

TRIAL. 

The  suppression  by  the  prosecution  of  facts  favoring  a  person  on, 
for  crime  entitles  tlie  prisoner  to  every  favorable  inference  that 
could  be  drawn  from  such  reprehensible  action iii.    26 

The  expression  of  a  decided  opinion  by  the  trial  judge  that  the  jury 

ought  to  convict  is  not  error,  if,  notwithstanding  this  expression  of 
opinion,  the  question  is  fairly  left  to  the  jury  to  determine,  and  the 
court  can  see  upon  a  review  of  the  testimony  that  the  evidence  was 
practically  CAnclusive iii.    80 

The  court  has  no  discretionary  power  over  the  right  of  accused  to 

the  assistance  of  counsel  at  the,  and  wiiile  it  may  control  the  exercise 
of  such  right  so  far  as  to  prevent  the  abuse  of  it,  to  limit  the  defend- 
ant's counsel  in  a  felony,  to  thirty  minutes  for  argument  is  an  abuse 
of  judicial  control iii.  873 

Defendant's  absence  during  part  of  argument  does  not  prevent 

conviction iii.  822 

— —  Prisoner's  counsel  can  not  waive  his  right  to  be  present  when  ver- 
dict is  returned .' iii.  804 

If  exceptions  to  errora  are  not  taken  on  the,  the  points  can  not  be 

'    raised  on  them  on  appeal iii.  218 

A  criminal,  had  before  a  qualified  attorney  acting  as  special  judge, 

although  by  the  consent  of  both  parties,  is  void iii.  821 

— —  Where  defendant  is  put  on,  without  plea  to  the  indictment  having 


I 


99 


AMERICAN  CRIMINAL  REPORTS.  751 

TRIKL-Continued.  p^^j. 

been  entered,  it  is  a  mere  technical  error,  andafifords  no  ground  for 

reversal vi.  835 

Note  on  right  of,  by  jury ............. ..vii!  493 

Noteon  right  of,  by  jury  not  involved  in  contempt  proceedings  Ax.  235 

Note  on,  for  crime  not  enumerated  in  treaty ix.  809 

It  being  the  constitutional  right  of  one  accused  of  crime  to  be 

present  during  the.  and  to  confront  the  witnesses  against  him,  a  con- 
viction of  murder  will  be  set  aside  where  neitlier  the  minutes  of  the 
clerk  nor  the  record  show  that  accused  was  present  when  the  verdict 
was  rendered  and  sentence  pronounced  against  him  or  that  he  was 
asked  by  the  court  if  he  had  anything  to  say  why  sentence  should 

not  be  pronounced  against  him jx.  349 

Note  on  right  of  accused  to  be  present  during, ix.  854 

Note  on  defendant  waiving  a,  byjwy jx.  854 

It  is  error  for  the  court,  where  one  was  on,  for  murder  to  order 

oiUcers  to  exclude  all  from  the  court  room  except  "  respectable  citi- 
zens"  ix.  719 

The  fact  that  entrance  to  the  court  room  during  the,  was  possible 

through  the  clerk's  office,  or  other  private  ways,  was  no  answer  to  the 

refusal  of  admission  at  the  public  entrance ix.  719 

For  such  error  accused  will  not  be  discharged  as  having  been  once 

in  jeopardy,  but  will  be  granted  a  new, ix.  719 

On  a  second,  of  the  defendant  for  a  felony  it  is  proper  for  the  S( 

to  read  to  the  jury  from  the  bill  of  exceptions  taken  on  the  first,  the 

testimony  given  by  defendant  in  his  own  behalf x.  140 

Continuance  within  discretion  of  court x.  140 

— —  The  practice  of  calling  in  a  jury  by  the  court  and  lecturing  them 

upon  the  desirability  of  an  agreement  is  not  commendable '.  .x.  140 

The  court  may  adjourn  to  a  time  beyond  the  commencement  of  the 

regular  term  in  another  county  of  the  same  district;  and  this,  in  the 
absence  of  any  showing  that  the  court  was  held  in  both  counties  at 
the  same  time,  does  not  invalidate  the  proceedings  at  such  adjourned 

term x.  140 

It  is  not  error  for  the  State  in  a  mur^'er.  to  be  permitted  to  read  in 

evidence  the  testimony  of  a  witness  taken  in  the  presence  of  the  ac- 
cused at  a  preliminary  hearing,  read  to  and  signed  by  the  witness,  as 

his  attendance  could  not  be  procured x.  248 

The  constitutional  right  of  a  defendant  to  be  informed  of  the 

nature  and  cause  of  the  accusation  against  him,  entitles  him  to  insist 
at  the  outset  by  demurrer  or  by  motion  to  quash,  and,  after  verdict, 
by  motion  in  arrest  of  judgment  that  the  indictment  shall  apprise  him 
of  the  crime  charged  with  such  reasonable  certainty  that  he  can  make 
his  defense,  and  it  is  his  privilege  m  such  case  to  apply  to  the  court 

before,  is  entered  upon  for  a  bill  of  particulars x.  251 

Right  of  defendant  to,  by  impartial  jui-ors  defined x.  847 

.  Requiring  an  appellant  from  a  sentence  of  a  justice  of  the  peace  to 

pay  certain  fees  is  not  an  infringement  of  the  constitutional  right  to 

a,  by  jury • ......x.  808 

jVbfe  on  right  of  one  on,  for  violation  of  a  muntctpal  ordinance 

*„  «  ^.Mi X.  403 

to  a  jury, 


752 


INDEX  TO  VOLS.  I  TO  X. 


iJLIAL— Continued.  page. 

Note  on  denial  of  continuance  upon  adminsions  by  the  prosecu- 
tion  X.  461 

Affidavit  of  accused  in  a  criminal,  for  a  continuance  is  taken  as 

true X.  456 

The  minutes  of  the  secretary  of  the  judges  of  the  Superior  Court 
of  San  Francisco  County,  showing  the  selection  and  return  of  the  jury 
list,  as  required  by  statute,  may  be  amended,  when  incomplete,  to 
conform  to  the  facts x.  499 

On  a  challenge  to  the  panel,  on  the  ground  that  tho  jury  list  was 

not  legally  selected  by  the  judges,  the  testimony  of  the  presiding 
judge  is  admissible  to  supplement  the  record  when  incomplete,  and 
to  show  the  action  actually  taken x.  499 

The  fact  that  some  of  the  persons  selected  as  jurors  in  making 

up  the  jury  list  do  not  possess  the  necessary  qualifications  is  not  a 
ground  for  challenge  to  the  panel x.  499 

Under  the  provision  of  the  present  constitution  of  California  by 

retaining  in  force  all  existing  laws  relative  to  the  judicial  system 
and  making  them  applicable  to  the  new  system,  providing  for  the 
selection  of  jurors  in  San  Francisco  county,  the  statute  is  not  ren- 
dered unconstitutional,  by  the  subsequent  amendments  making  it 
conform  to  the  present  system x.  499 

The  fact  that  jurors  were  summoned  by  special  venire,  without 

having  first  exhausted  all  the  names  upon  the  regular  list,  is  not 
ground  for  challenge  to  the  panel x.  499 

The  action  of  the  court  in  disallowing  a  challenge  to  a  juror  for 

cause  will  not  be  reviewed  where  the  defendant  did  not  challenge 
the  juror  peremptorily,  and  he  had  not  exhausted  his  peremptory 
challenges x.  499 

Under  a  statute  providing  that  a  court  may  for  cause  permit  a 

challenge  to  be  taken  to  a  juror  after  he  is  sworn,  and  before  the 
jury  is  completed,  a  court  may  permit  the  re-examination  of  a  juror 
by  either  the  people  or  the  defendant  on  a  matter  coming  to  their 
knowledge  after  his  acceptance,  and  before  the  completion  of  the 
panel,  and  may,  in  its  discretion,  allow  a  peremptory  challenge  to  be 
taken,  though  such  examination  discloses  no  ground  of  challenge  for 
cause X.  499 

The  correctness  of  a  verdict  which  has  been  sustained  by  the  trial 

court  will  not  be  reviewed  on  appeal  on  arguments  directed  to  the 
credibility  of  the  witnesses  or  the  weight  to  be  given  to  their  testi- 
mony   X.  499 

A  verdict  of  conviction  will  not  be  disturbed  on  appeal,  as  unsup- 
ported by  evidence,  unless  the  evidence  to  sustain  it  is  so  slight  as  to 
make  clear  the  inference  that  it  must  have  been  rendered  under  the 
influence  of  passion  or  prejudice x.  499 

'—  The  issuance  of  process  for  contempt  charged  to  have  been  com- 
mitted by  the  publishers  of  newspapers  during  the  progress  of  a  cause 
rests  entirely  in  the  sound  discretion  of  the  court,  and  can  not  be  con- 
trolled by  the  parties,  nor  have  they  any  right  of  appeal  from  the 
court's  action  in  the  matter z.  499 


^s; 


AMERICAN  CRIMINAL  REPORTS. 


753 


TBlXh— Continued,  page. 
\  —  Proof  that  a  witness  is  a  practicing  physician  and  surgeon,  and 
that  he  performed  an  autopsy  on  the  body  of  a  dead  person,  qualifies 
him  to  give  an  opinion  as  to  the  means  used  to  produce  death,  it 
being  conceded  that  the  question  is  a  proper  one  for  expert  testi- 
mony  X.  499 

-—  The  use  of  a  dressmaker's  frame  in  court  for  convenience  in  ex- 
hibiting the  clothing  of  a  murdered  woman,  which  was  introduced 
in  evidence,  and  in  regard  to  which  much  testimony  was  taken,  was 
not  prejudicial  to  the  defendant,  no  claim  being  made  that  the  frame 

represented  the  height,  size,  or  figure  of  the  deceased z.  499 

— -^  It  is  the  right  and  duty  of  the  trial  court,  on  its  own  motion, 
to  curtail  the  cross-examination  of  a  witness  on  a  collateral  matter, 
which  is  wholly  irrelevant,  and  as  to  which  the  witness  could  not  be 
impeached.  Under  a  statute  (which  gives  a  witness  the  right  to  be 
protected  from  irrelevant,  improper,  or  insulting  questions),  where  a 
lady  as  a  witness  had  stated  that  she  had  seen  the  defendant  since  a 
date  named,  the  following  question,  "That  is,  you  imagine  you 

have?"  was  properly  excluded  by  the  court x.  499 

— -  The  fact  that  a  person  was  brought  before  the  court  for  contempt 
during  the  trial  of  a  defendant  for  murder,  charged  with  having  said 
to  a  juror  in  the  case,  "  If  you  don't  hang  him  [defendant],  we  will 
hang  you,"  and  was  given  a  hearing  in  the  presence  of  the  jury, 
and  punished  for  the  contempt,  was  not  prejudicial  to  the  rights  of 
defendant   who  did  not  instigate  nor  conduct  the  proceeding,  and 

made  no  request  that  the  jury  be  excluded x.  499 

An  objection  that  an  indictment  recited  that  it  was  presented 

"  upon  the  oath  "of  the  grand  jurors,  when  in  fact  it  was  presented 
upon  the  oath  of  all  but  one,  who  affirmed  instead  of  making  oath,  ia 
merely  a  formal  defect,  without  prejudice,  which  is  cured  by  the 

provisions  of  Rev.  Stat.  §  1025 x.  547 

An  objection  that  neither  in  the  indictment  nor  in  the  proof  at  the 

hearing  of  a  plea  in  abatement  did  it  affirmatively  appear  that  a 
grand  juror,  who  was  permitted  to  affirm  instead  of  making  oath, 
had  conscientious  scruples  against  taking  an  oath,  is  without  merit, 
in  view  of  the  curative  provisions  of  Rev.  Stat.  §  1025,  and  in  view  of 
the  fact  that  the  mode  of  ascertaining  the  existence  or  non-existence 
of  such  scruples  is  committed  to  the  discretion  of  the  officer  who 

affirmed  the  juror -•^'  ^"^ 

Under  a  statute  providing  for  application  by  petition,  in  acrimmal 

case,  for  a  change  of  venue,  and  where  a  change  of  venue  is  applied 
for  an  account  of  the  prejudice  of  the  judge,  the  court  may,  in  lieu 
of  awarding  a  change  of  venue,  make  a  request  of  the  judge  in  an 
adiouming  circuit  to  hold  the  court  where  the  case  is  pending,  and 


try  the  same,  defendant  can  not  couple  his  application  for  a  change 
^t  „^„..<.  v^ith  a  condition  that  the  case  be  not  sent  out  of  the 


of  venue  with  a 

—"verdict,  wh^  a  jury  returns  an  informal  verdict  or  one  that  is 
48 


z.  606 


754 


INDEX  TO  VOLS.  I  TO  X. 


TRIAL— Continued.  page. 

not  responsive  to  the  issue,  tlie  court  may  direct  it  to  reconsider  tlie 
same  and  return  a  veixlict  in  proper  form ix.  746 

Verdict  recommending  clemency,  Note ix.  758 

See  MuRDEB. 

UTTERING. 

Note  on  when  the  offense  of,  and  publishing  a  forged  instrument 

is  consummated ix.  801 

Tlie  mailing  of  a  forged  instrument  in  one  county,  and  the  re- 
ceipt thereof  in  another  county  does  not  constitute  an,  in  the  first 
county ix.  742 

TAGRANCY. 

Defined ix.  7«5 

Sufilciency  of  allegations  in  information  for,  (Idaho). .     ix.  785 

Right  of  municipal  corporations  to  pass  ordinance  for  '  ,e  punish- 
ment of, ix  785 

VALUE. 

Where,  of  article  stolen  is  material  in  a  prosecution  for  larceny 
it  is  to  be  fixed  by  the  market  price  of  the  article  and  not  by  what 
such  article  is  worth  to  the  owner  or  for  the  particular  purpose  for 
which  it  is  used ii.  688 

In  a  prosecution  for  larceny  of  a  note  it  is  proper  for  tlie  court  to 

charge  the  jury  that  the  State  was  bound  to  prove  the  note  to  be  of 
some,  but  that  they  were  not  limited  to  direct  evidence  on  this  point, 
but  might  consider  any  evidence  from  which  the,  might  be  in- 
ferred  i.  878 

In  a  prosecution  for  forgery  the,  of  the  forged  instrument  is  not 

a  necessary  averment  in  the  indictment ii.  153 

Defined  as  used  in  section  03  of  the  Ohio  Criminal  Ck)de ii.  153 

VARIANCE. 

Where  indictment  for  assault  with  intent  to  commit  rape  does  n< 
state  age  of  female,  the  court  will  intend  that  she  was  over  tho  si. -.-• 
utory  age  and   the  evidence  shows  she  was  under  such  age  the.  ' 
fatal I.....  (AZ 

Where  an  indictment  for  forging  a  note  purported  to  set  forth  the 

note  according  to  its  tenor,  and  the  first  name  of  the  signaturs  as 
stated  in  the  indictment,  was  "Otha,"and  in  the  note  offered  in 
evidence  was  "  Oatha"  the,  was  fatal i.  a28 

Where  in  a  prosecution  for  the  larceny  of  a  note  the  evidence 

showed  the  note  to  have  been  made  payable  with  semi-annual  interest 
and  all  taxes  that  should  be  assessed  on  the  amount  of  money  repre- 
sented by  it,  and  the  description  of  the  note  in  the  information  omit- 
ted these  particulars  the,  was  immaterial i.  878 

Where  under  an  indictment  for  sale  of  liquor  to  A.  the  proof  shows 

a  sale  to  A.  and  B.,  jointly  the,  is  fatal i.  487 

Where  an  indictment  for  forging  a  promissory  note  in  describing 

the  note  set  forth  contained  the  words,  "  and  notice  of  protest,"  which 
words  the  note  offered  in  evidence  did  not  contain  the,  was  fatal. .  .ii.  188 


' 


s^ 


f<i 


^ 


AMERICAN  CRIMINAL  REPORTS.  768 

TABIANCE— Conftnticd.  p^^Q^^ 

In  baatardy  where  evidence  shows  that  the  offense  was  committed 

at  a  time  and  place  other  than  tliose  specified  in  tlie  complaint  the, 

is  fatal jjj_    21 

Where  the  indictment  charged  the  larceny  of  a  "  Smith  &  Weston  " 

revolver  and  the  evidence  showed  the  loss  of  a  "  Smith  and  Wesson" 

revolver,  the,  was  material uj,  246 

Where  indictment  averred  that  defendant  printed  and  published 

obscene  pictures  and  descriptions  of  naked  girls,  and  the  evidence 
showed  that  the  pictures  were  of  girls  clothed  below  the  waist,  the, 

was  fatal iii.  290 

Misnomer— In  a  prosecution  for  perjury  if  the  names  of  the  parties 

to  the  proceedings  in  which  the  false  oath  was  alleged  to  have  been 

taken  are  incorrectly  stated  the,  is  fatal iv.  465 

Where  in  an  indictment  for  arson  defendant  is  charged  with  set- 
ting fire  to  an  outbuilding  "  adjoining"  a  dwelling-house  and  the  evi- 
dence shows  that  the  building  was  near  to,  but  not  in  contact  with  the 

dwelling  house  the,  is  fatal iv.    43 

Where  an  indictment  for  bribery  alleged  that  the  money  was  paid 

to  plaintiff  in  en-or  as  a  bribe  by  one  C.  B.,  "  and  others  whose  names 
are  to  the  grand  jurors  unknown,"  and  the  proof  showed  that  the 

money  was  paid  by  C.  B,  the,  was  not  fatal iv.    78 

At  common  law  where  an  indictment  refers  to  third  parties  as 

persons  unknown  to  the  grand  jury  and  on  trial  it  appears  that  the 
grand  jury  did  know  the  names  of  such  persons  the,  works  the  ac- 
quittal of  accused iv.    78 

Where  an  indictment  for  larceny  alleges  ownership  of  property 

stolen  in  a  person  by  a  certain  name  and  such  owner  on  trial  testifies 
he  has  two  names — a  business  name  and  a  personal  one— the,  is  not 

material iv.  834 

—  Where  indictment  charges  defendant  with  forging  an  instrument 
purporting  to  be  signed  by  A,,  and  sets  out  an  instrument  purporting 

to  be  signed  by  B.,  the,  is  fatal vii.  191 

Where  the  indictment  alleged  the  sale  of  mortgaged  property  to  a 

person  unknown  to  the  grand  jury  and  the  evidence  showed  that  he 
was  either  known  or  could  have  been  known   by  the  exercise  of 

slight  diligence,  the,  was  fatal vii.  243 

Note  on,  in  regard  to  middle  name  or  initial  of  accused vii.  244 

In  indictment  for  keeping  disorderly  house  specifications  of  the 

characteristics  of  the  house  in  point  of   disorder  are  matters  of 
description  and  a  failure  to  prove  a  case  to  answer  them  is  a  fatal,. ix.  235 
. Note  on,  between  nams  of  tooman  alleged  in  indictment  for  adul- 
tery and  name  of  the  one  proven x.    19 

Note  on,  between  name  of  toum  in  which  burglary  is  laid  by  indict- 
ment and  name  of  the  one  prooen x.  1 54 

. Where  defendant  was  committed  for  trial  on  a  charge  of  stealing 

2,200  bushels  of  beans  and  the  evidence  disclosing  that  he  had  ob- 
tained certain  cheques  on  the  false  pretense  that  *'  there  were  2,680 
bushels  of  beans"  in  his  warehouse  and  he  was  afterwards  indicted 
for  obtaining  the  cheques  on  false  pretenses,  and  convicted  thereon, 
the,  was  immaterial x.  818 


766 


INDEX  TO  VOLS.  I  TO  X. 


YABIANCE— Con/f«ue<f.  paoe. 

There  is  a  fatal,  between  an   indictment  for  forgery  of  a  deed 

which  described  the  land  as  "north  half,"  etc.,  and  in  which  the 
word  "  sum  "  was  crossed  out,  in  the  clause  reciting  the  consideration 
for  release  of  dower,  and  concluding,  "  Witness  my  hands  and  seals," 
and  an  indictment  purporting  to  set  out  the  deed  in  Iuec  verba,  but 
which  described  the  land  as  "  the  north  half,"  in  which  the  word 
"sum"  was  not  crossed,  and  which  concluded  with,  "  Witness  my 
hand  and  seal,"  etc x.  820 

Kote  on  fatal,  where  indictment  alleges  forged  note  contained  the 

words  "  x^ith  six  per  cent  int.  from  date"  and  the  tiote  offered  in  evi- 
dence did  not  contain  such  words x.  418 

TENUE. 

Statute  regulating  change  of,  where  one  section  provides  that  no 
second  change  of,  shall  be  had  and  another  section  provides  that  a 
change  of,  shall  be  had  when  the  judge  has  been  of  counsel  in  the 
cause L  2S1 

■ A  defendant  can  have  but  one  change  of,  for  the  same  cause  in 

the  same  case i.  615,  ii.  618 

——  It  is  not  error  to  refuse  a  change  of.  on  the  ground  of  public  preju- 
dice where  the  prima /acie  case  made  by  the  affidavits  filed  by  the 
respondent  is  fully  answered  by  the  affidavits  filed  in  reply ii.  278 

In  a  prosecution  for  rape  the,  must  be  proven  as  laid  . . .  ii.  589,  iv.  672 

Refusing  or  granting  a  change  of,  lies  in  the  sound  discretion  of 

the  court iii.  848 

Where  on  a  trial  for  murder  the  State  did  not  give  affirmative 

proof  of  the,  but  evidence  of  it  was  incidentally  given  in  connection 
with  the  facts  in  the  case,  it  was  proper  to  leave  it  to  the  jury  to  decide 
whether  the,  was  proved iii.  -  421 

When  it  was  the  duty  of  one  to  remit  at  once  to  his  employers  in 

their  residence  town  all  monies  collected  by  him  as  their  clerk  in 
another  town  and  he  made  a  collection  which  he  did  not  remit  but 
wrote  them  a  letter  three  days  afterwards  to  make  them  believe  he 
had  not  then  in  fact  made  the  collection,  the  receipt  of  such  letter  by 
his  employers  in  their  residence  town  was  sufficient  to  lay  the,  for 
trial  of  the  prisoner  for  embezzlement iii.  608 

Proof  of,  may  be  made  by  direct  or  indirect  evidence,  but  it  must 

be  established  by  one  or  the  other iv.  672 

Must  be  proved  beyond  a  reasonable  doubt iv.  483 

Where  money  was  obtained  by  false  pretenses  contained  in  a  let-  • 

ter  mailed  in  one  town  to  and  received  by  the  prosecutor  in  another 
the,  of  the  offense  should  be  laid  where  the  letter  was  posted  and  the 
reply  containing  the  money  was  received iv.  691 

Sufficiency  of  proof  of,  can  not  be  considered  by  Appellate  Court, 

in  the  absence  oT  a  ruling  by  the  trial  court  and  exception  duly  re- 
served  vi.  625 

— —  May  be  shown  indirectly  and  circumstantially vi.  418 

In  indictment  for  obtaining  money  or  property  under  false  pretenses 

the,  should  be  laid  where  the  money  or  property  is  received  without 

regard  to  where  the  pretenses  are  made vi.  259 

SeeNote ix.  408 


r 


691 


625 

418 


269 
408 


J 


f 


AMERICAN  CRIMINAL  REPORTS.  757 

yE^E— Continued.  ^j^q^ 

An  allegation  generally  that  the  offense  was  committed  in  the 

county  where  indictment  ia  found  sufficiently  lays  the, vi.  298 

In  a  prosecution  for  abduction  of  female  for  purpose  of  concubin- 
age the,  is  properly  laid  in  the  county  wherein  defendant  began  mak- 
ing advances  to  her  and  urging  her  to  go  with  him ix.      7 

When  petition  for  change  of,  and  affidavits  required  by  law  are 

filed  the  court  has  no  discretion  and  the  change  should  be  granted .  ix.    20 

Of  a  prosecution  for  bastardy  is  in  the  county  of  the  complainant's 

actual  residence  and  in  which  the  child  is  liable  to  become  a  public 
charge  although  complainant  have  a  legal  settlement  in  another 
county  or  State ix.  117 

In  a  prosecution  for  mur.ler  when  the  blow  was  struck  in  one 

State  and  death  ensued  in  another  State  the,  in  the  indictment  was 
properly  laid  in  the  former  State ix.  898 

Note  on,  wJiere  a  person  stands  in  9ne  State  and  shoots  across  its 

boundary  and  feloniously  kills  a  person  in  another  State ix.  406 

The,  of  an  indictment  in  P.  county  for  receiving  a  watch  know- 
ing it  to  be  stolen  is  sufficiently  proven  by  evidence  that  accused 
obtained  possession  of  the  watch  in  M.  county,  came  to  P.  county 
with  it,  and  there  exacted  a  reward  from  the  owner  for  its  restora- 
tion   ix.  435 

Note  on  the,  of  the  offense  of  bigamy ix.  412 

Where  a  forged  instrument  is  mailed  in  one  county  and  received 

in  another  the,  of  the  offense  of  uttering  can  not  be  laid  in  the  first 
county ix.  742 

Note  on,  of  crime  committed  through  agency  of  postal  or  carrier 

service ix.  745 

Where  a  change  of,  is  actually  made  by  a  District  Court  to  some 

other  county  in  the  same  district  upon  the  written  application  of  the 
defendant,  such  order  is  not  fatally  defective  because  it  omits 
to  specify  the  cause  of  removal x.  162 

Where  a  change  of,  is  had  to  a  county  in  a  different  judicial  dis- 
trict than  the  one  in  which  the  offense  is  alleged  to  have  been  com- 
mitted, if  the  record  fails  to  show  that  such  change  w,a8  made  with 
the  consent  of  the  accused,  the  removal  is  without  authority  in  law.x.  162 

Note  on  change  of,  depending  upon  the  number  of  affUlavits  on  one 

side  or  the  other. x.  167 

A'o/e  on,  in  indictment  for  embezzling  money  without  ihe  State.. x.  291 

Note  onmiffkiency  of  affidavit  under  a  statute  providing  tltat  an 

indictment  shall  not  be  insufficient  for  want  of  proper  or  perfect x.  346 

VERDICT. 

Where  there  is  a  joint,  and  judgment  against  several,  which  is  erro- 
neous as  to  one,  against  whom  there  was  no  evidence,  the  judgment 
must  be  reversed  as  to  all i.  103 

.^ On  a  general,  of  guilty  on  an  indictment  containing  two  counts  for 

different  offenses,  based  on  the  same  transaction  the  law  applies  the, 
to  the  count  charging  the  higher  offense J-  896 

Before  an  illegal,  is  recorded  the  court  has  a  right  to  direct  the 


758 


INDEX  TO  VOLS.  I  TO  X. 


YEUTUCI— Continued.  PAGE. 

attention  of  the  jury  to  it,  and  have  them  render  a,  rcflponnive  to  the 
issue i.  589,  594,  vii.  2(W.  ix.  746 

A,  of  guilty  as  accessory  ofter  the  fact  is  illegal,  under  an  indict- 
ment against  defendant  chiirgin;;  him  as  prineipnl i.  S89 

— —  Of  eleven  jurymen  in  a  capital  case  is  a  nullity ii.  441,  iv.  574 

A,  of  guilty   rendered   in   defendant's   absence   should    be   set 

aside ii.  680,  v.  618 

— —  Where  an  information  for  mayhem  charges  the  malicious  intent 
in  the  words  of  the  statute  a,  that  defendant  was  "  guilty  as  charged 
in  the  information  with  the  malicious  intent  as  implied  by  law,"  will 
not  sustain  a  judgment ii.  681 

Note  on  confusion  of  ideas  of  fact  and  late  as  exhibited  by, ii.  683 

A,  can  not  be  impeached  by  the  affidavit  of  a  jurar  that  he  wi>uld 

not  have  agreed  to  the  finding  if  he  had  known  the  punishment  at- 
tached to  the  offense  found iii.  186 

Defendant's  counsel  can  not  waive  his  right  to  be  present  when, 

isreceived iii.  804 

When  indictment  charges  defendant  with  rape  of  a  female  child 

under  ten  years  of  age  a,  that  defendant  was  "  guilty  of  the  crime  of 
rape  upon  one  A.  B.  being  of  the  age  of  over  ten  years  "  is  open  to  a 
motion  in  an-est  of  judgment iii.  886 

A  general,  of  guilty  upon  an  indictment  is  a  finding  only  of  the 

facts  sufficiently  pleaded iv.  280 

Proper  instruction  when  a  statute  provides  an  alternative  punish- 
ment and  further  provides  that  the  jury  in  rendering  a,  of  guilty 
shall  "  fix  the  degree  ot  punishment  to  be  inflicted  unless  the  same  be 
fixed  bylaw" iv.  238 

— —  It  was  error  in  sueh  case  for  the  court  to  receive  a  general,  of 

"  guilty  as  charged  in  the  indictment "  and  assess  a  fine iv.  238 

See  Note iv.  239 

A  general,  of  guilty  is  good  on  an  indictment  for  receiving  stolen 

property  and  also  for  aiding  in  its  concealment  charged  in  two  sep- 
arate counts,  both  of  which  relate  to  but  one  and  the  same  transac- 
tion, the  punishment  for  each  offense  even  if  distinct  ones,  being  the 
same iv.  838 

A  general,  of  murder  will  be  sufficiently  certain  as  to  the  degree 

where  the  evidence  was  of  murder  in  the  first  degree  and  of  no  other, 
as  charged  in  the  indictment iv.  410,  v.  247 

Where  jury  is  polled  in  a  murder  case  it  is  the  duty  of  each  juror 

to  say  for  himself  whether  he  finds  the  prisoner  guilty  of  murder  in 
the  first  or  second  degree iv.  415 

Where  the  response  of  each  juror  in  such  case  is  simply  "  guilty," 

without  a  designation  of  the  degree  of  guilt,  such,  is  a  nullity iv.  415 

The,  on  an  indictment  for  receiving  stolen  goods  must  find  the 

value  of  the  property iv.  555 

Note  on  requisites  of,  upon  trial  of  an  infonnation  for  robbery. vr,  558 

Note  on,  on  indictment  for  arson iv.  558 

——  A,  finding  accused  guilty  of  the  robbery  and  of  receiving  the  same 


u 


339 


.  347 


i 


AMERICAN  CRIMINAL  REPORTS.  75O 

VERmCT— Continued.  pj^oj_ 

gooda  knowing  them  to  have  been  stolen  will  not  sustain  a  judg- 
raent iv.  555 

An  instruction  us  .0  form  of,  in  criminal  case  ignoring  the  right  of 

the  jury  to  find  for  •»  lesser  ofTense  not  error iv,    53 

It  is  essential  to  find  the  degree  of  crime  only  when  the  jury  find 

the  defendant  guilty  of  some  degree  other  than  the  one  charged  in 
the  indictment v.  247 

Pub.  Stat.  R.  I.,  Cap.  204,  Sec.  84.  providing  that  the  jury  may 

return  a  special,  upon  certain  conditions  does  not  apply  to  criminal 
prosecutions v.  833 

A,  of  "  guilty  of  assault  with  intent  to  commit  a  great  bodily 

injury  "  may  be  found  on  an  indictment  for  murder v,  880 

^—  When  without  objection  a,  was  received,  opened  and  read  during 
recess  and  the  jury  was  polled  at  defendant's  instance,  although  the, 
was  not  as  the  statute  provides  "  rendered  in  open  court,"  the  error 
was  simply  a  technical  one  and  will  be  disregarded  on  appeal v.  588 

—  Where  the  information  sufficiently  charges  the  defendant  with 
att«mpting  to  commit  a  rape,  a,  that  defendant  was  "  guilty  of  an 
attempt  to  commit  a  rape  as  charged  "  is  sufficiently  responsive. . .  v.    66 

Neitlier  accused  nor  his  counsel,  in  the  absence  of  notice  is  bound 

to  be  in  court  on  Sunday  to  receive, v.  599 

If  accused  desires  an  instruction  of  the  form  of,  for  the  lesser 

offense  he  must  prepare  and  ask  for  it;  failing  to  do  so  he  can  not 
complain vi.  418,  461, 705 

A,  finding  a  person,  who  is  charged  with  the  crime  of  "grand 

larceny,"  "  guilty  as  charged  "  is  sufficient vi.  809 

Will  not  be  set  aside  upon  the  ground  that  owing  to  noise  in  the 

court  room  the  jury  did  not  hear  the  instructions  when  read vi.  800 

—  Public  decency  and  public  policy  alike  forbid  jurymen  impeaching 
their  own, vi.    83 

Effect  of,  of  guilty  of  lower  degree  on  second  trial  for  murder. vi.  487 

See  Note vi.  505 

In  a  capital  case  will  not  be  set  aside  unless  the  irregularities  com- 
mitted by  the  jury  be  of  a  nature  to  raise  a  suspicion  that  they  may 
have  prejudiced  the  prisoner vii.  254 

The  character  of  the  punishment  determines  the  power  of  the 

jury  to  render  a,  in  the  absence  of  the  accused vii.    80 

Trial  courts  have  tiie  power  to  reject  an  informal  or  illegal, . .  .vii.  208 

An  informal  or  illegal,  can  not  operate  to  acquit  unless  the  jury's 

intention  to  acquit  is  apparent .vii.  208 

When  there  is  a  general,  of  guilty  on  an  indictment  containing 

several  counts,  if  some  of  the  coimts  are  defective  the  judgment  will 
be  supported  by  the  good  count viii.  608,  ix.  668 

. If  the,  as  to  any  of  the  counts  is  subject  to  objection  for  admission 

of  improper  testimony  or  erroneous  instruction  the  sentence  will  be 
supported  by  the,  on  the  other  counts  unless  the  error  was  such  as 
might  or  could  have  affected  the,  on  them, viii.  608 

, Defendant  has  the  right  to  require  a  separate,  to  be  rendered  on 

each  count,  but  he  waives  the  right  to  insist  on  them,  if  not  asked 
for  in  apt  time ''»"•  ^^ 


Tea 


INDEX  TO  VOLS.  I  TO  X. 


VERDICT— ConMntied.  paoe. 

A,  of  guilty  or  of  not  guilty  aa  to  the  charge  in  one  count  of  an  in- 
dictment ia  not  resiwnHive  to  the  charge  in  any  otlier  count ix.  101 

— —  Where  accuned  is  tried  ontwo  or  more  countd  in  an  indictment  a,  of 
guilty  on  one  count  operaten  as  an  acquittal  on  the  other;  such  acquittal 
does  not  vitiate  the,  of  guilty  on  the  other,  although  both  counts 
refer  to  the  same  transaction ix.  705 

Proper  form  of,  on  complaint  charging  vagrancy ix.  785 

Where  form  of,  does  not  prejudice  or  tend  to  prejudice  the  defend- 

ant  in  any  substantial  right,  any  surplusage  it  may  contain  docs  not 
affect  its  validity ix.  785 

Before  a,  returned  by  a  jury  in  case  of  felony  ia  complete  it  must  be 

accepted  by  the  court  of  record ix.  746 

At  any  time  between  return  of,  into  court  and  its  acceptance  by 

the  court  defendant  has  a  right  to  have  jury  polled ix.  746 

In  the  absence  of  a  polling  of  the  jury  any  member  thereof  has 

the  right  sua  aponte  to  recede  from  the,  at  any  time  before  it  ia  ac- 
cepted by  the  court ix.  746 

— —  The  manner  of  receiving  and  affirming,  in  felony  case  discussed 

ix.  746 

Note  on,  iiuiuced  by  promise  of  clemency  by  court ix.  768 

— —  Note  on  netting  aaide,  on  the  ground  of  miacondttct  of  the  foreman 
of  the  jury ix.  754 

—  A,  of  on  assault  on  an  indictment  for  an  assault  with  intent  to  in- 
flict great  bodily  injury,  is  not,  in  legal  effect,  an  acquittal  of  the 
lower  degree  of  simplf^  assault x.    41 

—  Note  on  when,  not  defective  aa  fixing  a  joint  punishment  for  two 
defendants x.    89 

Of  asaault  with  deadly  weapon  under  indictment  for  assault  with 

intent  to  murder  will  be  sustained  where  it  appears  that  the  assault 
was  made  with  a  deadly  weapon i.  580 

WAIVER. 

Asking  time  to  plead  is  equivalent  to  waiving  any  detail  of  the  pro- 
ceedings which  conatitute  the  arraignment i.  680 

Objection  not  made  at  trial  not  considered  on  appeal  i.  423,  iv.  838, 

vii.  877 

Defendant  in  a  criminal  prosecution  can  not  waive  hia  right  to  a 

legal  jury  of  twelve ii.  441,  iv.  574 

A  defendant  in  a  criminal  action  may,  with  the  consent  of  the 

State  and  court,  waive  a  statute  enacted  tor  his  beneflt,  or  his  right 
to  be  tried  by  a  full  jury  of  twelve ii.  626 

Provisions  in  Wisconsin  statute  creating  municipal  courts  that  "  a 

jury  trial  in  said  court  in  criminal  cases  may  be  waived  by  accused 
in  writing,  or  by  consent  in  open  court"  are  not  unconstitutional. .vi.  140 

Where  a  party  has  waived  hia  right  to  a  jury  trial  under  such 

statute  and  has  been  convicted  and  sentenced  to  imprisonment  the 
legality  of  his  confinement  may  be  tested  by  habeas  corpus vi.  140 

Proceeding  to  trial  by  defendant  waives  any  objection  to  non-per- 
formance of  statutory  requirements vii.  806 


rt 


1^ 


t 


AMERICAN  CRIMINAL  REPORXa  701 

YfAiym-Continued.  p^^j. 

Objection  that  trial  was  had  without  a  plea  must  be  made  in  trinl 

court  or  it  will  be  deemed  waived yji.  igg 

Note  on  right  to  tnal  by  jury  in  either  felcny  or  miiidemeanm'  canes 

can  not  lie  waived ^^^  ^m 

Defendant  voluntarily  appearing  and  going  to  trial  without  object 

tion  at  an  adjourned  term,  irregularly  hold,  waives  all  objection  to  the 
irregularity ^ij   545 

Note  on  defendant  waiving  inmfflcicncy  of  complaint x.  405 

WAREHOUSE. 

A  building  roofed  over,  of  which  one  side  and  one  end  are  planked 
up,  the  other  side  and  end  being  left  open  so  that  wagons  could  drive 
under,  used  for  storing  cotton,  and  being  enclosed  together  with 
about  two  acres  of  land  by  a  tight  plank  fence,  nine  feet  high,  the 
gates  of  which  are  kept  locked  is  a, i.  188 

WARRANT. 

A,  signed  by  a  magistrate  in  blank  and  afterwards  filled  up  by  a 
police  sergeant  has  no  legal  force  or  validity,  and  if  an  officer  at- 
tempting to  make  any  arrest  under  it  is  killed  the  offense  is  but  man- 
slaughter  i.  887 

An  officer,  armed  with  process  for  the  arrest  of  a  person  in  a  civil 

suit  can  not  take  the  defendant  from  the  liands  of  another  officer 
who  holds  him  on  a,  issued  in  a  criminal  case;  nor  can  he  hold  such 
person  as  against  onearmed  with  a  criminal, ii,  215 

A,  regular  on  its  face  but  illegally  issued  is  a  protection  to  the  offi- 
cer who  has  no  knowledge  of  the  illegality  of  its  issue,  but  such  a, 
imposes  no  duty  upon  him ii.  465 

Where,  was  properly  under  the  seal  of  the  trial  justice  and  the 

complaint  was  attached  and  referred  to  in  it,  if  the  i  omplaint  contained 
the  name  and  addition  of  defendant  the,  was  sufficient iii.  283 

Note  on  arrest  for  a  past  offense  without  a, vi.  429 

JVb<e  on  officer  exhibiting,  before  making  arrest vi.  480 

An  ordinance  authorizing  police  officers  to  arrest  without,  for  mis- 
demeanors not  committed  in  their  presence  is  void viii.  602 

Marshal  of  an  incorporated  city  or  town,  may,  where  a  breach  of 

the  peace  is  committed  in  his  presence,  without,  arrest  the  persons 
participating  therein Ix.    40 

Wliere  all  the  information  an  officer  had  of  the  affray  and  of  the 

parties  to  it  was  the  statements  of  eye  witnesses  he  has  no  authority 
in  law  to  pursue  and  arrest  the  persons  charged  with  the  offense 
without  first  obtaining  a  legal,  therefor ix.    49 

— —  Note  on  civil  liability  of  officer  in  whose  hands  a  lawful,  has  been 
placed  for  an  arrest  made  by  his  deputy  without  the ix.    56 

Note  on  necessity  for,  when  making  arrest ix.    58 

Note  on,  specifically  naming  and  describing  the  person  to  be 

arrested i*-    60 

WITHHOLDING  PENSIONS. 

To  constitute,  there  must  be  some  unreasonable  delay  or  some  re- 
fusal to  pay  on  demand  or  some  intent  to  keep  the  money iii,  884 

Is  not  a  continuous  offense iii.  884 


762 


INDEX  TO  YOlS.  I  TO  X. 


WITNESSES.  PAGE. 

A  girl  between  nine  and  ten  years  old  who  did  not  know  Iier  own 
age,  nor  the  nai:ure  or  obligation  of  an  oath  or  what  the  constviuoncea 
of  swearing  falsely  would  be,  but  said  she  was  defendant's  daughter, 
knew  her  prayers,  could  read  some,  believed  in  God,  and  thought  it 
wrong  to  tell  lies  was  properly  received  as  a  witness i.  185 

The  question  of  the  competency  of  a  witness  is  a  question  of  fact 

to  be  detri-inined  by  the  trial  judge  and  his  decision  is  not  subject  to 
revision i.  185,  ill,  27a,  x.  847 

In  impeaching  the  character  of,  evidence  of  the  bad  repute  of  their 

family  or  associates  is  irrelevant i.  199 

Note  on  the  testimony  of  a  deceased  witness  examined  on  a  former 

trial,  being  proved  on  a  second  trial  for  tJie  same  offense i.  203 

It  is  proper  to  ask  a  sustaining  witness  on  cross-examination 

whether  he  had  said  he  would  not  believe  the  impeached  witness 
under  oath i.  618 

—  It  is  proper  to  ask  an  impeaching  witness  who  has  testified  to  the 
bad  reputation  of  an  impeached  witness  for  truth  and  veracity 
whether  from  that  reputation  he  would  believe  the  impeached,  under 
oath i.  618 

Credit  of  impeached  witness  can  not  be  sustained  by  Evidence  of 

his  general  reputation  for  truth  and  veracity i  801 

When  the  character  of  a  witness  has  been  attacked  by  evidence 

that  he  has  been  convicted  of  a  felony,  it  may  be  sustained  by  evi- 
dence of  his  general  reputation  for  truth  and  integrity i.  197 

On  cross-examination  of  a  witness  for  the  prosecution,  defendant 

has  the  right  to  draw  out  from  hiui  evidence  which  tends  to  contra- 
dict material  evidence  which  has  been  given  by  another  witness  for 
the  prosecution i.  618 

An  impeaching  witness  may  be  cross-examined  by  the  adverse 

party  as  to  the  sources  and  extent  of  his  knowledge  before  testifying 
to  the  reputation  of  the  witness  he  is  called  to  impeach ii.  333 

It  is  error  for  the  court  to  reject  the  testimony  of  an  impeaching 

witness  as  to  the  reputation  of  the  witness  sought  to  be  impeached 
on  the  ground  that  his  knowledge  of  that  reputation  is  not  sutli- 
cient ii.  833 

Wife  of  a  defendant  is  not  a  competent  witness  for  a  co-defendant 

being  tried  at  the  same  time ii.  333 

Note  on  competency  of  ivife  of  defetidant  as  a  witness  for  a  co- 
defendant  when  they  have  separate  trials. . .   ii.  386 

A  child  is  a  competent  witness  so  far  as  understanding  the  obli- 
gation of  an  oath  is  concerned  if  it  appears  that  she  knows  that  she 
will  be  punished  if  she  tells  a  lie iii.  372 

^—  A  neighbor  testifying  that  he  has  known  the  party  from  childhood 
to  whoiie  character  he  proposes  to  testify  is  a  competent  witness,  .iii.  415 

A  woman  with  whom  defendant  had  lived  as  his  wife  for  sev- 
eral years  and  to  whom  he  was  not  married  was  a  competent  wit- 
ness for  or  against  him iii.  851 

—  Only  those  legally  married  are  not  competent,  for  or  against  each 
other iii.  351 


AG£. 


185 

847 
199 
203 

3 

.  618 

r 

i.  618 
f 

i  301 
e 
i- 
i.  197 

r 

r 
i.  618 

333 


i.  332 
333 

i.  336 


• 


e 


272 
415 


.  351 
.  351 


«  'J 


AMERICAN  CRIMINAL  REPORTS.  768 

WITNESSES~Con<tnMcd.  p^Qj, 

Wliere  a  witness  is  rejected  as  incompetent  defendant  need  not  set 

out  in  bill  of  exceptions  what  he  expected  tw  show  by  such  witness,  iii.  851 

Defendant  testifying  in  h's  own  behalf  is  subject  to  the  same  rules 

of  cross-examination  and  impeachment  as  any  other  witness iii.  133 

See  Note ij_    ^ 

— — •  It  is  error  to  allow  the  state  to  impeach  its  own, iji.    50 

A  witness  who  has  been  discredited  by  the  introduction  of  evi- 
dence tending  to  contradict  him  may  be  sustained  by  proving  that 
[soon  after  the  occurrence  to  which  he  has  testified  he  stated  substan- 
tially the  same  facts  to  others  which  he  testified  to iii.    87 

See  Note iii.    50 

It  is  iiTor  to  refuse  to  allow  counsel  for  accused  to  consult  his.  for 

no  other  reason  than  that  they  have  been  put  under  the  rule iv.  253 

Respondent's  request  in  a  case  of  homicide  for  the  rule  on  the,  if 

seasonably  made  should  be  granted iv.  357 

Statute  which  removes  existing  restrictions  upon  the  competency 

of  certain  classes  of  persons  as,  relate  to  modes  of  procedure  only,  in 
which  no  one  has  a  vested  right iv.  417 

Disobedience  to  rule  separating,  renders  them  guilty  of  contempt, 

but  not  incompetent iv.  483 

Where  the  rule  is  had  on,  it  is  a  matter  of  discretion  with  the 

court  to  allow  a  witness  who  has  remained  through  a  misunderstand- 
ing of  the  order  to  testify iv.  543 

It  is  error  for  the  court  to  order  arrest  of  defendants,  in  the  pres- 
ence of  the  jury  on  account  of  what  they  have  testified  to iv.  579 

See  Note iv.  581 

—  -  The  credibility  of,  can  not  be  impeached  by  proof  of  declarations 
ot  third  persons,  not  made  in  their  presence vi.  625 

Under  Iowa  statute  for  impeachment  of,  their  general  moral  char- 
acter may  be  shown vi.  269 

Statements  made  to  a  witness  by  one  of  two  defendants  while  the 

other  defendant  was  under  arrest  are  admissible  against  both. . .  .vi.    80 

Husband  and  wife  can  not  appear  as,  against  each  other,  and  in 

criminal  cases  the  subsequent  dissolution  of  the  marriage  relation  by 
divorce  does  not  remove  the  incompetency vi.  306 

On  a  trial  for  murder,  evidence  that  on  the  night  before  the  hom- 
icide the  principal  witness  for  the  state  had  a  quarrel  with  defendant, 
and  of  a  threat  he  then  made  against  the  defendant  is  admissible  to 
show  hostility  and  bias  of  witness vii.  468 

Where,  swear  falsely  upon  a  material  point,  effect  proiK'riy  had 

upon  their  entire  testimony  in  the  eyes  of  the  jury vii.  1,  126,  153 

Proper  cross-examination  of,  as  to  previous  statements vii.  877 

A  party  seeking  to  impeach  a  witness  may  ask  him  whether  he  was 

ever  convicted  of  a  felony  and  if  so  what  sentence  was  imposed  on 
him viii.    58 

Unless  a  witness  has  lived  in  the  same  county  with  or  knows  the 

defendant's  general  reputation  in  the  county,  he  is  not  competent  to 
testify  in  regard  thereto viii.    58 

Where.as  an  incidental  consequence  of  answers  to  competent  ques- 
tions concerning  their  residence  and  occupation,  disclose  facts  that 


im 


7t. 

t 


764 


INDEX  TO  VOLS.  I  TO  X 


WITNESSES—Conhnucd  paob. 

tend  to  impair  their  credibility  or  impeach  their  moral  character  they 
can  not  complain viii.  100 

Note  on  competency  of  wife  of  accuncd  aa  a  witness  against  the 

husband iz.     8 

A  witness  giving  evidence  in  proof  of  handwriting  need  not  be  a 

professional  expert ix.  276 

The  deposition  of  a  witness  for  the  State,  taken  in  defendant's  pres- 
ence, and  taken  by  his  express  consent  for  the  purpose  of  obtaining  a 
continuance  is  admissible iz.  866 

— —  One  accused  of  stealing  may  show  that  a  witness  who  testifies  to 
having  bought  the  alleged  stolen  property  of  the  defendant  was  him- 
self accMsedof  the  same  offense  as  furnishing  a  motive  to  testify,  .ix.  686 
—  The  provision  of  the  Constitution  that  "no  person  shall  be  com- 
pelled to  testify  against  himself  in  a  criminal  cause"  does  not  exempt 
a  witness  from  disclosing  the  names  of  others  than  himself  who  have 
engaged  in  gaming,  but  the  testimony  of  such  witness  shall  in  no 
case  be  used  against  him ix.  754 

Note  on  rule  as  to  exemption  of,  from  self-crimination ix.  760 

Evidence  admissible  for  purpose  of  impeaching  may  be  incompe- 
tent to  prove  motive  of, % x.    20 

Opinions  of,  not  admissible x.    25 

Note  on  competency  of  witness  to  testify  in  regard  to  defendant's 

handwriting x.    81 

— ^  Note  on  cross-examination  of  defendant  as  a  witness  in  his  men 
behalf x.    81 

Husband  a  competent  witness  against  wife  charged  with  burning 

community  property x.    81 

— —  Improper  to  permit  a  witness  to  be  asked,  for  the  purpose  of  affect- 
ing her  credibility,  whether  she  was  addicted  to  the  morphine  habit 

X.    40 

Testimony  that  witness  saw  defendant  after  his  arrest  and  recog- 
nized him  as  the  one  whom  he  saw  commit  the  offense,  is  admissible. 

X.    67 

—  Non-expert  witness  can  testify  as  to  sanity  of  defendant x.    57 

——  Evidence  of  general  bad  character  of  a  witness  is  admissible  to 

discredit  his  testimony x.     57 

Evidence  of  the  good  character  of  a  witness  several  years  before 

the  trial  and  while  living  in  a  community  other  than  that  in  which, 
testified,  that  she  had  a  bad  character,  is  admissible  to  rebut  such 

testimony x.    57 

• Note  on  cross-examination  of  prosecuting  witness  in  bastardy  case. 

X.    98 
——  Note  on  the  State  introducing  evidence  tending  to  show  a  different 
state  of  facts  from  that  testified   to  by  a  witness  for  defendant  not 
being  an  impeachment  of  such  witness  as  to  entitle  defendant  to  intro- 
duoe  evidence  to  sustain  such  witness x.  139 

—  On  atrial  for  murder  permitting  the  State  to  read  in  evidence  the 
testimony  of  a  witness  taken  in  the  presence  of  accused  at  a  prelim- 
inary hearing  not  error z.  243 


PAOB. 

)ral  character  they 

• via  100 

tneaa  against  the 

ix.     8 

ting  need  not  be  a 

ix.  276 

» defendant's  pres- 
ose  of  obtaining  a 

ix.  865 

M  who  testifies  to 
fendant  was  him- 
ive  to  testify.. ix.  686 
■son  shall  be  com- 
'  does  not  exempt 
limself  who  have 
itness  shall  in  no 

ix.  754 

«'«o» ix.  760 

may  be  incompe- 

••••' X.    20 

X.    25 

'd  to  defendant's 

X.    31 

itness  in  his  otcn 

X.    31 

;ed  with  burning 

X.     81 

)urpose  of  affect- 
morphine  habit 

X.    40 
arrest  and  recog- 
'e,  is  admissible. 

X.    67 

n<lant x.    57 

s  admissible  to 

X.     67 

■ral  years  before 
I  that  in  which, 

to  rebut  such 

X.    57 

t  bastardy  case. 

X.    93 
«hoio  a  different 

defendant  not 
ndant  to  intro- 

; X.  189 

in  evidence  the 
'd  at  a  prolim- 

X.  243 


AMERICAN  CRIMINAL  REPORTS.  7(55 

WITNESSES-ConhHMcd. 

PAGE 

Xote  on  constitutional  right  of  defeMant  to  meet,  face  to  face. 

~~^J^J'^^V'^T^  ""*  "^L*""^  admismble  on  the  ground  tharhet  *^' 

should  hT  In  H    *""  T''^'''  *°  '*  *^  ""*  '^^^^"y  *»>«*  «««h  person 
should  be  skilled  m  such  matter  by  reason  of  his  profession  or  trade. 

~^n 'Smlf"**  privileges  of  accused  when  offered  as  a  witness  in  his 

Competency  of  child  as  a  witness *  ni^ 

SeeNote ^"^l 

See  Trial.  ' "^^  ^*'* 

WRIT  OF  ERROR. 

When,  will  lie  in  behalf  of  the  State j^     sO 

---  Is  allowable  from  Federal  Supreme  ^ourt  to  Territorill 'supVeme 

Omrts ^    . 

T         ,,     IV.  494 

Is  used  to  remove  to  State  Supreme  Court  for  examination  and 

review  the  record  in  all  criminal  actions  and  is  allowed  in  all  crim- 
inal cases  from  the  final  decisions  of  inferior  courts ix.  821 

WRONGFUL  ARREST. 

^"'^  ""' ix.    60 


